On Monday, the Supreme Court issued what has been billed as a split decision on Donald Trump’s ban on immigration from six majority-Muslim countries. The court kept the ban in place for those who couldn’t prove a “bona fide relationship with a person or entity in the United States.” As Wired noted, since most visitors from the six affected countries generally travel on visas that require proof of these relationships, the ban should be considered null and void for most potential travelers. That is, if the administration abides by the spirit of the opinion.
That’s a big if, though. Given its history, it seems likely the White House will use the ambiguity in the Supreme Court’s order to stretch the boundaries of what’s considered a “bona fide relationship with a person or entity in the United States.”
Pratheepan Gulasekaram, a professor of immigration and constitutional law at Santa Clara University School of Law, told me that H-1B temporary worker visas, agricultural worker visas, and student visas would all plausibly fall in the category of requiring a “bona fide relationship with a person or entity in the United States.” Perhaps the only groups of travelers that don’t meet that standard are people with tourist visas and some refugees. Even those on tourist visas, though, often obtain them to visit family members. “It’s very difficult to get a tourist visa from Iran to begin with. It’s not something that is handed out very easily,” says Jayashri Srikantiah, the founding director of Stanford Law School’s Immigrants’ Rights Clinic. If Trump follows the court’s ruling, then, refugees—who may or may not have such family connections—will likely be the primary group affected. “I don’t think you’re talking about a large number of people,” Srikantiah told me.
“It just gets much more in the weeds when you have factual determinations that are made by consular officers,” Srikantiah told me. “Those are harder decisions to review because they’re discretionary decisions by a consular officer” who is evaluating applicants on an individualized basis. “That’s just unfortunately how this system works,” she added. “Even under the Bush administration, many people from certain countries had a very hard time coming to the U.S. because of these consular decisions that are very, very, very difficult to review.”Read More