US & Canada

Trump travel ban: Questions about the revised executive order

People gather to pray in baggage claim during a protest against the travel ban imposed by U.S. President Donald Trump's executive order, at Dallas/Fort Worth International Airport in Dallas, Texas, U.S. on January 29, 2017 Image copyright Reuters
Image caption The first ban was met by protests in airports across the US - in Dallas, Muslims prayed in protest

President Donald Trump's second attempt to ban refugees and immigrants from several mostly Muslim countries has faced months of legal to-and-fro.

The US Supreme Court is allowing parts of the revised order to be implemented, before it considers the US government's case in full in October.

The first executive order, which sparked mass protests and confusion at airports, was halted by the courts in February.

Just hours before a revised version was due to go into effect at midnight on 16 March, a judge in Hawaii suspended it nationwide, and it also hit stumbling blocks in several other states before the Supreme Court stepped in.

What happens now?

The Supreme Court's decision on 26 June means that people from six mainly Muslim nations and refugees will be temporarily barred from the US unless they have a "credible claim of a bona fide relationship with a person or entity" in the country.

This provides a major exception to the ban that experts say will substantially reduce the number of people who can be denied entry.

Who will be affected?

People from Iran, Libya, Somalia, Sudan, Syria and Yemen unable to demonstrate the "bona fide" connection.

The Supreme Court has offered some clarification on what this means:

  • "For individuals, a close familial relationship is required"
  • "As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading" the order
  • This means a student registered at a US university, or a worker who had accepted an offer of employment in the US (or someone invited to, for example, deliver a lecture) would be allowed to enter
  • However, it also means that anyone trying to engineer a connection with a US organisation would be banned. For example, "a non-profit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion"

But the Trump administration's interpretation of "close familial relationships" was limited, and did not include grandparents, grandchildren, brothers-in-law, sisters-in-law, uncles, aunts, nephews, nieces and cousins.

That prompted legal action in the state of Hawaii. In July, a judge said "common sense" would show that grandparents "are the epitome of close family members", and ruled that the ban should not be enforced on all those family members listed above.

Those coming in on tourist visas are expected to face particular scrutiny, as they - unlike those on work, student or family visas, where the connection will be more evident - will have to clearly demonstrate a US relationship.

Refugees without US connections are also expected to face particular difficulties. However the US Committee for Refugees and Immigrants, a non-profit group, told the Associated Press it was confident it had "an existing relationship with incoming refugees, certified and arranged through the Department of State".

Big win for Trump and his travel ban

How is the revised order different from the original order?

The original order barred people from seven majority-Muslim countries - Iran, Iraq, Syria, Yemen, Somalia, Sudan and Libya - from entering the US for 90 days. It also halted refugee resettlement for 120 days and banned Syrian refugees indefinitely.

The revised order removed Iraq from the list, after it agreed to boost co-operation with the US, and it also lifted the indefinite ban on Syrian refugees.

The new version also makes it clear that visa and green card holders from the countries on the list will still be allowed entry, as will dual nationals travelling on a passport from a country not on the list.

Image copyright Getty Images
Image caption Donald Trump hit out at judges who refused to reinstate his ban

The revised order also says waivers can be granted on a case-by-case basis, in cases where denying entry would "cause undue hardship".

The number of refugees for the year until October was capped at 50,000, some 35,000 fewer than the previous 12 months. That limit was reached by mid-July.

Why were those countries chosen?

The second executive order states that each of the six countries is either considered a state sponsor of terrorism by the US or "has been significantly compromised by terrorist organisations or contains active conflict zones". This "diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United States," the order says.

Critics have noted that major attacks such as the 9/11 New York attacks, the Boston marathon bombing and the Orlando nightclub attack were carried out by people from countries not on the list, such as Saudi Arabia, Egypt and Kyrgyzstan, or by US-born attackers.

What is the Supreme Court doing next?

The US Supreme Court said it would hear arguments on the legality of the revised ban during its next term, which runs between 2 October and 21 December.

The court is currently made up of four liberal and five conservative judges, including Mr Trump's new appointee Neil Gorsuch. That does not necessarily mean that the ban will be reinstated in full, however.

More on Trump's travel ban

Why was it originally suspended?

Judges who first suspended - and then upheld the suspension - of the first order cited several concerns:

  • The speed of the roll-out - judges in San Francisco said the justice department had failed to show the executive order gave enough "notice and a hearing prior to restricting an individual's ability to travel"
  • They said there was "no evidence that any alien from any of the countries named in the order" had committed a terrorist attack in the US
  • The exclusion of Syrians in January's order was also problematic. The Immigration and Nationality Act says no person can be "discriminated against in the issuance of an immigrant visa because of the person's race, sex, nationality, place of birth or place of residence"

The second order allowed a 10-day lead-in time before it was due to come into effect, in an attempt to avoid the confusion and uncertainty caused by the immediate implementation of the first, where scores of people were detained at airports or in transit.

But nevertheless, a judge in Hawaii still suspended the revised order. He concluded that, were the ban to go ahead, there was a strong likelihood it would cause "irreparable injury" by violating First Amendment protections against religious discrimination.

His justification focused on comments made by Mr Trump and his advisers that suggested their intention was to ban people on the basis of their religion, even though the administration says this is not the case.

The Hawaii court also cited a "dearth of evidence indicating a national security purpose". The justice department said the ruling was "flawed both in reasoning and in scope".

A judge in Maryland later also blocked the order, on the basis that the travel ban was likely to be considered a ban on Muslims and therefore unconstitutional.

Other legal challenges to the second order:

Oregon - said the order hurts residents, employers, universities, health care system and economy

Washington - it has "same illegal motivations as the original" and harms residents, although fewer than the first ban

Minnesota - questioned the legality of the move, suggesting the Trump administration cannot override the initial ban with a fresh executive order

New York - "a Muslim ban by another name", said the attorney general

Massachusetts - new ban "remains a discriminatory and unconstitutional attempt to make good on his campaign promise to implement a Muslim ban"

California - says order is an attack on people based on their religion or national origin

Virginia - "We remain unconvinced [the ban] has more to do with national security than it does with effectuating the President's promised Muslim ban," an appeals court ruled in May.

Media playback is unsupported on your device
Media captionMuslim students on Trump ban: 'I don't belong here'

Is it a "Muslim ban"?

This is a crucial question in the legal battle.

On 14 February, a US district judge in Virginia ruled the first order was unconstitutional because it had religious bias at its heart - an appeals court in the same state ruled along the same lines on the second ban too.

Ruling on the second version, the Hawaii court also dismissed the government's argument that the ban is not anti-Muslim because it targets all individuals from the six countries, regardless of religion, and the countries themselves represent only a small fraction of the world's Muslim population.

"The illogic of the government's contentions is palpable. The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed," the court ruling said, pointing out that the countries' populations were between 90% and 99% Muslim.

The court also cites statements made by Mr Trump, such as a 2015 press release calling for "a total and complete shutdown of Muslims entering the United States".

But the Department of Justice says that a distinction should be made between things said as a candidate and as president.

In a bid to address religious discrimination issues, the second order removes a particular section that said refugees' claims should be prioritised "on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality".

Mr Trump previously said priority should be given to persecuted Christians.

Related Topics