US travel ban criteria could trigger fresh lawsuits: Experts

Protesters demonstrating in Washington yesterday against the US Supreme Court’s ruling on Monday that allowed President Donald Trump’s travel ban to go partially into effect.
Protesters demonstrating in Washington yesterday against the US Supreme Court’s ruling on Monday that allowed President Donald Trump’s travel ban to go partially into effect.PHOTO: NYTIMES

New standard allowing entry to people with 'bona fide' connections may also confuse overseas consular officials

WASHINGTON • The Supreme Court's criteria for who can be barred from entering the US under President Donald Trump's travel ban may confuse the US officials overseas charged with implementing it and trigger a new round of lawsuits, experts said.

Travellers with a "bona fide relationship with a person or entity" in the United States are spared from the temporary ban affecting people from six Muslim-majority countries and all refugees that the justices on Monday allowed to go partially into effect.

"There is no precedent for something like this that I am aware of," said Mr Jeffrey Gorsky, a former legal adviser to the State Department's Visa Office, referring to the new "bona fide"standard.

Mr Gorsky said the standard is likely to sow confusion among US consular officials who have to make visa decisions and could require another court decision to determine what constitutes a connection to the US sufficient to allow entry.

Mr Trump issued an executive order on March 6, calling for a 90-day ban on travellers from Libya, Iran, Somalia, Sudan, Syria and Yemen, and a 120-day ban on all refugees to enable the government to implement stronger vetting procedures.

He cited national security concerns as the reason for the order, which was later blocked by lower court rulings.

The Supreme Court on Monday revived parts of the ban and agreed to decide the legality of the Trump order in its next term, which begins in October. Justice Clarence Thomas argued that the court should have granted Mr Trump's request to implement the travel ban in full while the legal fight continues.

  • What ruling means

  • Q What did the US Supreme Court decide about President Donald Trump's travel ban?

    A The court agreed to evaluate the ban next term, and, in the meantime, it overturned the decisions of lower courts, saying that Mr Trump's administration could enforce its immigration ban against certain people while it waited for the Supreme Court to hear arguments and decide the case.

    Q Does that mean that the President can block everyone from the six countries he identified as dangerous - Iran, Libya, Somalia, Sudan, Syria and Yemen?

    A No. The justices agreed with the appeals courts that certain people should be allowed to come to the US, as long as they have what the court called "a credible claim of a bona fide relationship with a person or entity in the United States".

    Q What about refugees coming from places like Syria or other war-torn countries?

    A The court imposed the same rules for refugees as it did for those seeking entry from the six countries. Refugees who have some connection to the US may not be summarily blocked from entry; those who have none may be blocked from entry.

    Q Are there still big questions?

    A Yes. The definition of a "bona fide relationship" is not clear yet, according to opponents of the ban. For example, if a vacationer has a reservation at a hotel in the US, does that qualify as a "bona fide relationship?" That kind of question will not be known for sure until the government blocks people from coming and the cases are taken to the courts.

    Q What about Mr Trump's decision to limit the number of refugees admitted each year to 50,000 people? A The court said that the administration's limit of 50,000 refugees could not be used to arbitrarily restrict entry to a refugee who otherwise had a legitimate connection to the US.

    Q When does this take effect?

    A In a June 14 memorandum, Mr Trump said the relevant agencies would wait 72 hours to make any changes if a court gave the government the right to reimpose the ban. The memorandum said the waiting period would "ensure an orderly and proper implementation" of the changes. That would appear to prevent a repeat of the original travel ban, when travellers were stuck in limbo in airports around the US.

    Q Is this a final ruling?

    A Not yet. The court's ruling on the travel ban applies only between now and when the justices make a final ruling, which might not come until late autumn.


"Today's compromise will burden executive officials with the task of deciding - on peril of contempt - whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country," Justice Thomas wrote, joined by two fellow conservative justices.

In Monday's ruling, the high court gave a few examples of connections that qualify. For individuals, a close family relationship is required.

Bona fide connections to entities, the court said, must be "formal"and "documented".

That would include students who have been admitted to a US school and workers who have accepted an offer of employment from an American company, the court said.

It noted that Mr Trump's executive order already allowed for case- by-case waivers for people with connections to the country.

On the other hand, the justices said, relationships created for the purposes of evading the travel ban will not be considered valid. For instance, an immigration agency cannot add foreigners to client lists "and then secure their entry by claiming injury from their exclusion".

Mr Stephen Legomsky, chief counsel for US Citizenship and Immigration Services under former president Barack Obama, said lawsuits could claim that a bona fide relationship was ignored.

While Mr Legomsky said he believes the vast majority of cases will be clear-cut, courts will have to determine whether visiting a close friend or taking part in a wedding could also qualify.

Some lawyers also said the vagueness of the bona fide standard was licence for the Trump administration to interpret it broadly.

"It is just like a green light to the government to do what it wants to do," said Mr Kiyanoush Razaghi, a Maryland-based immigration attorney who deals with primarily Iranian clients. "Who is going to tell us what is the definition of 'bona fide relationship'?"

The difficult job of judging foreigners' claimed connections could land back in the lower courts in Maryland and Hawaii that had originally blocked Mr Trump's travel ban, said Professor Stephen Vladeck of the University of Texas School of Law.

"We could have dozens of these cases between now and September," he added.


A version of this article appeared in the print edition of The Straits Times on June 28, 2017, with the headline 'US travel ban criteria could trigger fresh lawsuits: Experts'. Print Edition | Subscribe