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US travel ban ruling begs question: What’s a ‘bona fide’ US tie?

LiveMint logoLiveMint 27-06-2017 Erik Larson

New York/San Francisco: Donald Trump declared victory after the US Supreme Court said a narrowed version of his travel ban can take effect. But the ruling, which allows the government to deny entry to people from six mostly Muslim countries who don’t have existing ties to the US, is creating a new set of questions.

At the top of the list is: What qualifies as a “bona fide” relationship to the US? That’s what residents of those countries will need to show before being allowed to enter, the Supreme Court said on Monday. Another question is: Are existing visa holders secure?

The Supreme Court agreed to hear the case in October, meaning the 90-day travel ban will expire before the high court gets to the merits. The fresh uncertainty may force lower-court judges to again weigh in on the immigration fight just as aspiring visitors, immigrants and refugees believed the dispute was winding its way toward a conclusion.

“We’ll see how the ’bona fide’ connection is construed,” Cecillia Wang, an attorney with the American Civil Liberties Union, said in a phone call.

That leads to yet another question, said Cornell University Law School professor Stephen Yale-Loehr. He said it’s unclear whether the individual seeking entry or the government will have to provide the proof about the bona fides.

“I predict chaos at the border and new lawsuits as foreign nationals and refugees argue that they are entitled to enter the United States,” Yale-Loehr said in an email.

The narrowed travel ban will take effect in 72 hours. That gives the Trump administration some time to clear up many of these questions. The Department of Homeland Security could issue a definition of a ’bona fide’ relationship, and say precisely how the travel ban will be enforced at U.S. airports. They may also want to address how rejected refugees will be treated if they seek asylum in the US for fear of persecution at home.

That could avoid some chaos at embassies and airports, ahead of the Fourth of July holiday in the US and the Eid al-Fitr Muslim holiday in the affected region.

In its 13-page order temporarily allowing a portion of the travel ban to go into effect on 29 June, the justices detailed some examples of a bona fide relationship. They include a foreign national who wishes to live with or visit a family member, a student who has been admitted by a university, or a worker with an offer of employment from a US business.

But as Justice Clarence Thomas warned in a brief dissent, even this temporary order may prove “unworkable” and lead to a “flood of litigation” as US customs and border officials wrestle with whether persons from the six counties have sufficient ties. Courts “will struggle to determine what exactly constitutes a ‘bona fide relationship,’ who precisely has a ‘credible claim’ to that relationship,” he said.

‘Clear definition’

“There is no clear definition of what that means,” said Justin Gest, assistant professor of public policy at George Mason University. “This puts into danger people who had relationships that may be unconventional, or unrecognized by the Trump administration.”

The Merriam Webster dictionary defines bona fide as “made in good faith without fraud or deceit.”

Perhaps the central question is how the Trump administration interprets the Supreme Court’s order. Immigration advocates say that most visas go to travellers with ties to the US so there should be little discretion for customs officials and few should be denied entry.

“The implementation of the executive order will be done professionally, with clear and sufficient public notice, particularly to potentially affected travellers, and in coordination with partners in the travel industry,” the Department of Homeland Security said in a statement. The department said more details will be provided once it has consulted with Justice and State departments.

Immigration hotline

Immigration advocates pledge to be especially vigilant as travellers with visas arrive at US ports. A coalition of immigrant rights groups, including the Council on American-Islamic Relations, will continue to man a hotline for travellers facing roadblocks at US points of entry. Since Trump’s revised ban was blocked by a federal court in Hawaii, the hotline has been mostly silent. Denials of entry will likely end up being challenged in courts.

The next three days will be crucial to determine stability at most American airports as sections of the executive order are re-introduced, said Zahra Billoo, executive director of the Council of American Islamic Relations in San Francisco.

‘Closely monitoring’

“We’ll be sending lawyers back to airports to make sure people aren’t landing and having their visas turned away,” Becca Heller, the director of the International Refugee Assistance Project, said on a conference call with reporters. “We’ll be closely monitoring what’s happening to people as they enter.”

“It seems the intent of the Supreme Court order is anyone with US ties could still come in,” she said, adding that those already awarded a visa have a bona fide relationship with the US. Airlines expect they won’t face the same issues as in January, when some travellers complained they weren’t allowed to board US-bound flights even though they could legally travel to the country.

“For all flights from foreign countries to the US, American electronically validates visas and passports against Customs and Border Protection systems,” said Ross Feinstein, an American Airlines spokesman. That won’t change under the Supreme Court ruling, he said.

Revised order

Trump’s initial 27 January order barring citizens of seven nations regardless of their legal status set off a weekend of chaos at airports and border crossings as hundreds of immigrants and travellers, including at least one translator who worked with the US military in Iraq, and even people with US permanent resident permits—or Green Cards—were detained or delayed in being admitted to the country. Companies, international allies and human rights activists assailed the ban and judges quickly blocked it, forcing the administration into retreat.

Trump revised the order, removing Iraq from the list of countries subject to the ban -- Iran, Libya, Somalia, Sudan and Syria—after its government took specific steps to assuage the Trump administration’s concerns, including agreeing to quickly repatriate Iraqis who overstay their US visas and increasing information about its citizens that it shares with the US.

The new order also omitted a provision from the original directive that would have prioritized religious minorities in making admission decisions. Critics said that language demonstrated an unconstitutional bias toward Christian immigrants.

Still, the revised order was also put on hold by two US appeals courts, leading to Monday’s Supreme Court decision, which allowed bans on people from the six countries, and refugees, with no connection to the US.

A final Supreme Court ruling won’t come until this fall at the earliest. Bloomberg

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