SCOTUS Issues Decision Expanding Qualifying Relationships for Exemption from Revised Travel Ban

By Ala Salameh* and Karlie Dunsky - Franczek Radelet P.C.

July 24, 2017

On July 17, the U.S. Supreme Court issued a decision clarifying the application of its June 26 ruling reinstating the revised travel ban that now blocks entry to the U.S. for certain applicants from Yemen, Sudan, Somalia, Syria, Libya, and Iran. Specifically, the Court overrode guidance by the U.S. Department of State (DOS) and U.S. Department of Homeland Security (DHS) regarding who qualifies as a “close relative” who may demonstrate that they are exempt from being subject to the travel ban.

The Court’s ruling on June 26 provided exemptions from the ban for those who have a “credible claim of a bona fide relationship” to a U.S. citizen or entity. Read here for more information. In response, on June 29, the DOS and DHS issued FAQ guidance that the agency would interpret “close family” for the purposes of a “bona fide relationship” with a U.S. citizen to include a spouse, parent (or parent-in-law), child, adult son or daughter, sons- and daughters-in-law, or sibling, including half- or step-siblings. Excluded from the definition of “close family” were grandparents, grandchildren, aunts and uncles, nieces and nephews, cousins, brothers- and sisters-in-law, and other extended family members. Fiancés were later added to the FAQ list of those included as “close family.”

On July 13, the U.S. District Court for the District of Hawaii modified its original preliminary injunction to prevent implementation of the ban against those with close family connections and included in its definition of close family the above-named groups that were excluded in the DOS and DHS guidance. The U.S. Supreme Court’s decision last Monday upheld the lower court’s overriding of the agency guidance. The DOS issued revised guidance to its staff on Wednesday, incorporating the expanded the definition of “close family.”

Client Takeaways: The revised travel ban is now in effect, temporarily halting issuance of new visas and admission to the United States for non-exempt individuals from the six designated nations for a 90-day period that started June 29, and refugees seeking resettlement for 120 days. An entry or new visa applicant from those countries demonstrating they have a “credible claim of a bona fide relationship” to a U.S. citizen or entity will be exempt from the ban. That relationship still must be formal, documented, and not simply formed for the purpose of evading the travel ban. While this will generally include most business relationships (i.e. persons with bona fide offers of employment), this also will now include an expanded group of personal relationships that will protect individuals from subjectivity to the ban.

The U.S. Court of Appeals for the Ninth Circuit is scheduled to review the constitutionality of the revised travel ban on October 10, 2017, prior to the issue’s return to the Supreme Court. We will continue to keep our clients updated as this case progresses.

*Ala Salameh will be a second-year law student at Loyola University Chicago this fall and is a Franczek Radelet LEADS Fellow.