Ban 3.0 at the Supreme Court: What You Need to Know

By: Shoba Sivaprasad Wadhia, Sirine Shebaya and Abed Ayoub

This document does not constitute legal advice and will be updated as necessary. It was updated at 8:00pm on 2/15/2018.

What happened at the Supreme Court on January 19? On January 19, 2018, the Supreme Court agreed to hear arguments on the legality of the Presidential Proclamation (Ban 3.0). In the lower courts, the legal challenges to Ban 3.0 have been wide ranging and were successful at the Hawaii and Maryland courts. The challenges have been constitutional and statutory. Whereas the Hawaii court focused on the statutory arguments to conclude that Ban 3.0 violates the immigration statute by denying immigrant visas based on nationality, the Maryland court focused on the likelihood that Ban 3.0 violates the Establishment Clause of the First Amendment to the U.S. Constitution.

What happened at the Supreme Court on December 4? On December 4, the Supreme Court issued orders staying the injunctions placed on certain aspects of Ban 3.0 by federal district courts in Hawaii and Maryland pending a decision by the appellate courts and the Supreme Court. Justices Sotomayor and Ginsburg would have denied the application giving rise to these orders. On December 4, the Supreme Court did not make a decision on the legality of the ban. What this means is the third version of the ban can take full effect pending a decision by the Supreme Court.

What about the cases at the courts of appeals? The Government appealed the Maryland and Hawaii decisions. On December 22, 2017, the Ninth Circuit Court of Appeals ruled that the plaintiffs are likely to succeed on the claim that the Proclamation violates the Immigration and Nationality Act. The court limited the injunction to those “with a credible bona fide relationship with the United States” and then stayed its own decision pending a decision by the Supreme Court. On February 15, 2018, the Fourth Circuit Court of Appeals ruled that the plaintiffs are likely to succeed on the claim that the ban violates the First Amendment of the U.S. Constitution and found that the Proclamation is “unconstitutionally tainted with animus toward Islam.” The court limited the injunction to those with bona fide relationships and stayed its own decision pending a decision by the Supreme Court.

Who is covered by Ban 3.0?

  • Chad, Libya and Yemen: all immigrants and those entering as tourists or business travelers

What is the scope of the ban? These suspensions only apply to people who:

  • are outside the United States on the applicable effective date

Who is exempt from Ban 3.0?

  • Lawful permanent residents (green card holders)

If I am covered by the ban can I still enter the country? A consular officer may, on a case-by-case basis and within their discretion, grant a waiver to affected immigrants for certain reasons. The person seeking entry must prove that:

  • denying entry would cause the foreign national undue hardship;

Please seek the advice of an immigration attorney before seeking a waiver.

What should I do if I am from one of the eight countries, outside the United States and want to travel to the United States? If you are from one of the eight countries, are covered by the ban and do not yet have a visa then you cannot obtain one at this time, unless you qualify for a waiver. If you are from one of the countries and do have a valid visa should be able to enter the United States. The federal government has represented to counsel in the Maryland cases that the Supreme Court Order will affect visa issuance going forward, but not visas that have already been issued. This should mean that people with valid visas issued before December 4, 2017 should still be able to travel to the United States. The agencies have not yet issued any public statements about implementation of the ban. Nevertheless, if you choose to travel, please talk to an immigration attorney and arrange for assistance by a lawyer or advocate at the airport you are flying into. Finally, please make sure you know and understand your rights.

What should I do if I am from one of the eight countries, am in the United States with a valid visa and want to travel outside the country? The third version of the ban states that no visas will be revoked and that those with a valid visa on the effective date are not covered by the ban. Furthermore, the federal government has represented to counsel in the Maryland cases that the Supreme Court Order will affect visa issuance going forward, but not visas that have already been issued. Nevertheless, travel outside the United States at this time carries a lot of risk. If you plan to travel, please visit an immigration attorney so you can understand the risks and responsibilities of leaving the United States. Also, please arrange for assistance by a lawyer or advocate at the airport you are flying back into.

Where can I find more resources?

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Shoba Sivaprasad Wadhia

Law professor @PennStateLaw, writes on immigration, diversity & discretion; author of Beyond Deportation and Banned @NYUpress www.beyonddeportation.com