US travel ban: Confusion all around as Supreme Court ruling sets 'bona fide relationship' criteria

One day before President Donald Trump's temporary travel ban is scheduled to take effect, there is still uncertainty about how the administration will implement it.

FP Staff June 29, 2017 03:30:27 IST
US travel ban: Confusion all around as Supreme Court ruling sets 'bona fide relationship' criteria

Even as President Donald Trump's temporary ban on all refugees and travellers from six predominantly Muslim countries is scheduled to take effect from Thursday, there is still uncertainty about how the Trump administration will implement it. The confusion follows a US Supreme Court decision on Monday that allowed the long-delayed executive order to take effect, but significantly narrowed at its scope.

The court exempted travellers and refugees who have a "bona fide relationship" with a person or entity in the United States. As of Wednesday, most of the main federal departments and agencies responsible for implementing the ban had not issued official legal guidance to their staff in the field or to the public. There was only a State Department cable which makes it compulsory for travellers to have a "close" family or business tie with the United States.

US travel ban Confusion all around as Supreme Court ruling sets bona fide relationship criteria

Protestors carry posters at a rally against the travel ban. AP

'What is a bona fide relationship?'

Different organisations around the US have expressed their confusion at the ban. The University of Illinois said that 200 people associated with it would be affected. That includes students, faculty, staff and prospective students.

"We are cautiously optimistic that there will not be any need for worry, we believe that the the university is a bona fide entity for which you could have a relationship with," said Martin McFarlene, the Student Services Director at the University.

But since nobody knows exactly what that means, the university can't warn the community.

"When they come to us and say can I travel, we should be able to give them a straight answer. The fact that we can't is incredibly frustrating not just to us, but for them as well," added McFarlene. The department is worried this could affect future students the most.

Jeffrey Thielman, of the International Institute of New England spent much of Monday trying to figure out just who will be exempted from the travel ban, reported WBUR. The institute resettles hundreds of immigrants annually from countries including those under the temporary travel ban.

"I guess if you have a brother or a sister or a parent in the country, then maybe you're in," he said. "So it's still very confusing, and we're going to need some clarity soon."

Authorities are being careful

US Department of Homeland Security (DHS) secretary John Kelly said on Wednesday he told the DHS employees that he wants to tread carefully in implementing the order. “I  told my folks I didn’t want to come anywhere near close to getting crosswise with the court. I think that’s the right way to be a public servant,” Kelly said, adding that he expects the government will win the case when it is heard this fall. David Lapan, a DHS spokesman, said additional information will be released on Thursday, the day the ban is to start. A justice department spokesman declined to comment.

The ban's looming enforcement against nationals of Iran, Libya, Syria, Somalia, Sudan and Yemen stirred anger and confusion in parts of the West Asia on Wednesday, with would-be visitors worried about their travel plans and their futures.

The Supreme Court specifically mentioned family ties and job or university offers as reasons to exempt someone from the ban, but did not mention such issues as business or professional conference travel. Airlines in the region said they had not received a directive from the United States, and there were few people at the US Consulate General in Dubai, where there is normally a line out the door of people waiting to process visa applications.

The US Department of State has said it does not plan to cancel previously scheduled visa appointments for residents of the six countries.

Trump issued the ban in an executive order on 6 March earlier this year, saying it was a temporary measure needed to allow the administration to review the vetting process for immigrants from those countries. Travel from the six countries was banned for 90 days and for all refugees for 120 days. But lower courts in Maryland and Hawaii blocked the order, saying it was a pretext for targeting Muslims and violated the US Constitution's prohibition on favoring one religion over another. The Supreme Court then narrowed the scope of the lower court injunctions.

Refugees in limbo

Refugee advocates are struggling to understand what the court ruling will mean to applicants in the pipeline.

The US Department of State on Tuesday said the United States has already admitted about 49,000 refugees for the fiscal year ending in September, while Trump's executive order set a cap of 50,000. The court's decision allows the cap to take effect, but only against those who do not have a “bona fide” connection.

Administration will permit refugees with 'close ties'

On Wednesday, a state department cable was reported as exempting those refugees who had 'close ties' to the United States.

The new guidelines sent to US embassies and consulates on Tuesday say that applicants from the six countries must prove a relationship with a parent, spouse, child, adult son or daughter, son-in-law, daughter-in-law or sibling in the US. Grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancee or other extended family members are not considered to be close relationships.

Senior officials from the departments of state, justice and homeland security are finalising criteria that visitors from six mostly Muslim countries must meet to avoid the Trump administration's revived travel ban.

Litigation predicted

Litigation could rise around the ban as the criteria allows for different interpretations.

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

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

With inputs from agencies

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