by Shoba Sivaprasad Wadhia, the Samuel Weiss Faculty Scholar and Law Professor at Penn State Law and founding director, Center for Immigrants’ Rights Clinic.
A travel ban was signed by the president in the form of an Executive Order on March 6, 2017. The most controversial provisions of the ban include a 90-day travel restriction for nationals from six countries with Muslim populations of more than 90 percent: Iran, Libya, Somalia, Sudan, Syria and Yemen as well as a suspension of the refugee admissions program for a period of 120 days. The ban was successfully challenged in the courts on both constitutional and statutory grounds.
On June 26, the Supreme Court of the United States issued a significant decision on the travel ban, agreeing to hear the case in the October 2017 term and also allowing part of the ban to go into effect. The formula offered was as follows: any national from the six countries impacted by the ban or refugee who lacks a credible “bona fide relationship to a person or entity” is banned from the United States. Unsurprisingly, attorneys and affected communities were eager to understand how “bona fide relationship” would be defined and applied. While the Supreme Court offered a few examples of what might qualify as a bona fide relationship to a person or entity, the uncertainty about how this would be applied by the implementing agencies (in this case Department of Homeland Security and Department of State) is real.
Hours before the ban was to go into effect at 8:00pm EST on June 29, the Departments of State and Homeland Security issued “guidance” which to say the least is controversial. Guidance from DHS offered the following question and answer regarding the definition of “bona fide relationship:”