Amanda Holpuch and Saeed Kamali Dehghan, The Guardian, June 26, 2017
Human rights advocates have warned of a “summer of litigation” in response to the US supreme court’s decision to partially reinstate Donald Trump’s travel ban.
The ban applies to people from six Muslim-majority countries and refugees, but one clause in the court’s order has raised more questions than it answers about who will actually be allowed entry into the US.
People from Iran, Libya, Somalia, Sudan, Syria and Yemen and all refugees are not allowed to enter the US unless they have “a credible claim of a bona fide relationship with a person or entity in the United States”, according to the court.
Naureen Shah, the director of Amnesty International USA’s Security and Human Rights Program, said that even as trained lawyer she had difficulty interpreting its meaning.
“As a bare minimum it introduces uncertainties into life-and-death decisions for people,” Shah said. “It’s so brazenly dismissive to that chaos it is going to unleash.”
For instance, if one American doctor agrees to provide medical care to a child injured in a refugee camp, does the child have a bona fide relationship with the doctor, or the hospital the doctor works at?
In addition, it is not yet clear how the departments of state and homeland security will explain the definition of a bona fide relationship to airports abroad.
Conservative supreme court Justice Clarence Thomas warned in his opinion on the case that the court’s decision “will invite a flood of litigation”.
Human rights advocates agreed.
“The way this is going to be settled is with lawsuits,” said Hardy Vieux, legal director at Human Rights First, a US-based advocacy group, predicting a “summer of litigation”.
“There will be such disparities that whether or not you’ll be able to get on a plane will depend on what airport you show up at and how they’ve decided to read a Supreme Court decision,” said Amnesty’s Shah. “That’s astounding.”
Amnesty International USA filed a Freedom of Information Act request on Monday night for federal agency documents that show what guidance will be provided to international airports for processing people traveling to the US.
Bill Frelick, director of the Refugee Rights Program at Human Rights Watch, said the order was particularly confusing because considerations about connections to the US are already made by the government when it decides which of the 22.5 million refugees it will admit.
The determination on who to let in is usually made by considering the humanitarian and diplomatic impact of admitting certain people.
For instance, after the Vietnam war, a rush of Vietnamese refugees were admitted to the US out of fear they could have be persecuted because of their association with the US. And US intelligence agencies, embassies and military groups may also recommend people be admitted to the country out of specific humanitarian concern or because a person provided assistance to the US and may resultantly fear persecution.
It is not, however, clear whether people in these circumstances have a “bona fide relationship” with the US. “Every single word [in the order] needs to be parsed in terms of what counts and how much it will count,” said Frelick.
David Miliband of the refugee charity the International Rescue Committee (IRC) said the decision would have an immediate impact on already vetted refugees scheduled to go to the US.
“Too much time already has been spent litigating this misguided order,” said Miliband. “The approach of the administration is bad policy. That is not changed by the legal arguments. The court’s decision threatens damage to vulnerable people waiting to come to the US: people with urgent medical conditions blocked, innocent people left adrift, all of whom have been extensively vetted.”
Hadi Ghaemi, an Iranian American and the executive director of the New York-based Center for Human Rights in Iran, said Trump’s ban played into the hands of hardliners in Iran.
“It’s a very unfortunate development on the American tradition because the entire premise of the travel ban is against the spirit of non-discrimination and the American norm and it undermines the very spirit of American democracy to discriminate against the citizens of these country who are all Muslim – if it stands the way it is, it will undermine everything that America stands for,” he said.
Ghaemi’s organisation documents the human rights abuses of the Iranian establishment. “It’s going to be devastating for large numbers of Iranians,” he said.
The Guardian reported in February how the travel ban would leave the fate of gay, lesbian, bisexual and transgender refugees from Iran in limbo.
“The entity that would benefit the most is Iranian hardliners, who want to keep the country isolated and they don’t want the young people to have access to other parts of the world – it reinforces that isolation and will backfire generally with America’s larger interests in the region and unfortunately would make the Iranian public opinion of the United States more negative,” Ghaemi said.
Susan Eley held an exhibition of Iranian artists last week in her gallery in New York City called “Beyond the Ban”. It hosted several Iranian artists and was created in response to Trump’s ban. She told the Guardian that she was outraged by the supreme court’s decision.
“I didn’t think even without this new supreme court justice that it would pass – I don’t know what will happen in the fall but any victory for Trump on this is awful for us as a country, culturally, politically, socially,” she said.
“Based on this ban, most of the artists who were in the show – if this ban had been in effect when they came here as immigrants – we wouldn’t have their art on these walls. Some of the artists remain nameless because they go back to Iran, so those sorts of artists will probably think again about going back and forth to visit family in Iran, they’ll probably stay here, for the fear of not being able to get back in.”
She added: “We’re going to see all sorts of reaction, people going to the airport again, to Washington, in protest. I think we have to stay outraged.”
In Yemen, a former government minister called the ban the wrong way to deal with the crisis there.
“To be honest, with a ban or without the travel ban the Yemenis cannot get any visas to go to the US anyway; even before the ban this was always the case. The only change is that it wasn’t legally endorsed,” Rafat Al Akhali, former Yemeni minister of youth and sports, told the Guardian.
“It’s the wrong way to deal with the crisis in Yemen to begin with, which the US is very much a part of the ongoing war and the ongoing crisis,” he said. “As far as the majority of the Yemenis are concerned, I would say the world has turned its back on Yemen and on Yemenis. You saw the latest numbers … The worst cholera outbreak in the world, the largest humanitarian crisis in the world – the numbers speaks for themselves, the only response is banning Yemenis from entering the US.”
Since Trump issued the first travel ban in late January, legal chaos has followed.
The supreme court’s order on Monday was in response to a revised version of the first travel ban, which was struck down.
The second order was temporarily blocked in lower courts and then appealed by the Trump administration to the supreme court.
The supreme court will hear oral arguments for the case in October, but until then, the partial travel ban will be in effect.