A limited version of President Trump’s controversial travel ban is back in place after the Supreme Court ruled that the federal government could impose restrictions on certain foreign travelers and refugees. The constant back-and-forth rulings have created a bureaucratic nightmare for those involved in the refugee resettlement process, and Thursday’s developments promise even more disruption.
While President Trump proclaimed victory, refugee and human rights advocates have been on tenterhooks this week. The high court’s decision was certainly a blow to opponents of the ban, but just how hard that blow is will depend on the Trump administration’s next moves.
The government’s new guidelines would significantly limit the total number of noncitizens and refugees that can enter the country, according to a State Department background briefing Thursday afternoon. The department released its guidance just four hours before the ban is scheduled to go into effect. However, the Department of Homeland Security, which controls border enforcement, has not issued its own guidance on the new policies.
During its short but turbulent existence, two versions of the travel ban have been issued, blocked by federal courts, and now given the go-ahead with certain restrictions. But the Supreme Court decision and the subsequent federal guidelines do not reassure refugees advocates. “Nothing is off the table when it comes to this travel ban,” says Justin Cox, a National Immigration Law Center (NILC) staff attorney. “We can’t assume smooth sailing.”
On Monday, the justices said that they would wait until October to hear two cases regarding Trump’s travel ban. Until then, the high court granted a partial stay to injunctions freezing the controversial executive order, allowing a limited version of the travel ban to go into effect.
Noncitizens who can show they have a “bona fide relationship” with a “person or entity” in the United States will be allowed to enter the country, as will anyone who has already been issued a visa. People who cannot prove that they have a close relationship with a U.S. citizen will be banned from entering the country for 90 days if they are from the six Muslim-majority countries included in the executive order. That time period increases to 120 days for refugees from any country who have not yet received permission to enter the U.S.
The high court gave a few examples of what constituted a bona fide relationship with a person or entity in the U.S., such as visiting a relative or traveling to work or study, but stopped short of providing comprehensive definitions, preferring to leave the work of coming up with more nuanced characterizations to the federal government and lower courts.
But under the new guidelines, relatives only include immediate family members already in the country: parents, spouses, children, adult sons or daughters, sons- or daughters-in-law, and siblings. Grandparents were not included in the guidelines.
Refugees who have already been admitted to the U.S. and are booked to travel before July 6 will be exempt from the ban. A senior administration official said that the fate of those who’ve been booked travel after that date would be addressed at a later time. The briefers also said that establishing valid connections with American entities by refugees would need to be “formal” and “documented”: Simply being connected to a resettlement agency would not be sufficient. Roughly one-third of refugees waiting to be admitted do not have family ties in the United States, according to resettlement agency estimates.
“This is an unduly restrictive approach,” says Eleanor Acer, director of Human Rights First’s Refugee Protection program. “Refugees who go through multiple security entities, are approved by the DHS [Department of Homeland Security], vetted by various government agencies, and have long relationships with resettlement agencies should all be viewed as having requisite bona fide relationships.”
The limited ban could still leave thousands of people in limbo. “This isn’t like postponing a vacation,” says Melanie Nezer, vice president of policy and advocacy at HIAS, a Maryland-based Jewish resettlement agency. “These are life or death situations that refugees could be forced to remain in.”
Of the top 10 countries for total numbers of refugees granted permission to enter the United States during the last fiscal year, only three—Somalia, Syria, and Iran—were listed in Trump’s original executive order. Iraq is also among the top 10, and there are tens of thousands of people who worked with the U.S. government who are waiting to get clearance to resettle in this country. Under these current guidelines, it’s not clear if they would be granted entry.
The reinstated ban has stoked fears of a return to the chaos that played out in airports across the country following the haphazard rollout of Trump’s first executive order.
Naureen Shah, Amnesty International’s senior director of campaigns announced that the organization would be sending researchers to airports to “monitor how the ban is being implemented.”
“There’s going to be massive confusion in airports around the world,” says Acer, who anticipates a heightened legal response to refugees connected to resettlement agencies being blocked from entering the country.
In his partial dissent, Justice Clarence Thomas warned that the court’s decision would “invite a flood of litigation”—a comment that will likely prove prescient in the months to come. Lawsuits challenging the original and updated versions of the travel ban have inundated federal courts.
“I expect that we’ll be back in court soon,” says Cox of the NILC. “No one is going to take this lying down.”
Critics of the ban argue that refugees are already the most rigorously vetted group allowed into the U.S., undergoing a process that can take up to two years or more. “I don’t know how much more extreme the vetting can get, frankly,” says Cornell law professor Stephen Yale-Loehr.
This new wave of uncertainty unfolds at a time when the number of approved refugees approved to enter the U.S. had just started to bounce back after Trump’s initial immigration restrictions. Resettlement numbers plummeted in the wake of Trump’s first two attempted travel bans: In January, the U.S. admitted nearly 7,000 refugees admitted by March that number had declined to just 2,000 in March, according to State Department data.
More than 46,000 refugees have been admitted and resettled in the U.S. in fiscal 2017, nearly reaching the 50,000 limit that Trump had specified in his original executive order, but still a long way off from the 110,000 ceiling that the Obama administration had put in place.
The Supreme Court allowed the U.S. to cap refugee arrivals, but justices did not allow the Trump administration to prohibit refugees with bona fide relationships, even if “the 50,000-person cap has been reached or exceeded.”
Officials at HIAS, one of nine agencies that work with the State Department to resettle refugees, were already worried they wouldn’t hit their resettlement targets before the travel ban was reinstated. Even in the “best-case” scenario, the agency expects to resettle 1,400 fewer than they had been approved to resettle at the beginning of the fiscal year. Other resettlement agencies have reported similar drops.
“The program changes on an almost weekly basis,” says Nezer. According to Nezer, these changes in policy can stall refugee case processing. That can often result in medical and security clearances expiring, which in turn creates even lengthier delays.
Trump had originally ordered federal agencies to wait 72 hours after the court’s decision to implement the ban. Trump maintains that the ban is necessary to protect the nation from terrorist activities and praised the court’s decision as “a clear victory for our national security.”