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Supreme Court allows Trump's travel ban to partially take effect

Discussion in 'Lottery Visas - DV' started by EURO2014, Jun 26, 2017.

  1. EURO2014

    EURO2014 Well-Known Member

    "The Supreme Court agreed Monday to hear arguments on President Donald Trump's travel ban executive order — and will allow parts of the directive to take effect in the meantime. ...
    The high court’s action means parts of the order Trump re-issued in March will likely go into effect until the court decides on the legality of the measure, although the court limited the order’s impact on international travelers with clear ties to individuals, businesses or organizations in the United States."
    Source: http://www.politico.com/story/2017/...travel-ban-let-parts-of-it-take-effect-239956

    It will be important to see specific application for DV applicants from affected countries - whoever is originating from there and already holding an immigrant visa should seek to enter and activate the Green Card without delay! The 90-day ban on travel for folks from these 6 countries and 120-day ban on all refugee entry into the US is therefore now allowed to take place with the courts exceptions. Green Card holders are exempted from the ban.
     
    Last edited: Jun 26, 2017
  2. SusieQQQ

    SusieQQQ Well-Known Member

    The courts have also exempted those with family members and other ties to the US : "Monday's ruling said the ban cannot be applied to visa applicants who have a close relationship to a family member in the U.S. or who want to come here to study or accept a job offer. But the ban can now be enforced against all other visa applicants in the six affected countries."
    Of course most immigrant visas are covered in the above via family or work - so it's still unclear to my legally untrained mind where a DV selectee with no other ties to the US would fall.
     
  3. EURO2014

    EURO2014 Well-Known Member

    The hope is that DV-2017 folks with already completed screening and DV immigrant visa in their passports will also be exempted, nobody knows right now I believe. The Supreme Court has been rather specific only in respect to refugees. The court wrote that "when it comes to refugees who lack any such connection (added: family ties) to the United States, for the reasons we have set out, the balance tips in favor of the government's compelling need to provide for the nation’s security." In any event, activated Green Card Holders are being exempted. Time will also tell what will be happening in respect to ongoing DV processing in those countries until DV-2017 will run out.
     
  4. leawe

    leawe Member

    This nightmare wont finish:mad:

    I just came back from us to activate my green card after i passed the interview but i left before receiving my green card... im waiting for it

    Im planning to go in October ... will i face any problem?
     
  5. SusieQQQ

    SusieQQQ Well-Known Member

    No, you are already a permanent resident.
     
    leawe likes this.
  6. EURO2014

    EURO2014 Well-Known Member

    Are you a citizen of one of the countries affected hereby? Are you processing CP or AoS? If it is the former, you will activate your Green Card upon first entry into the US, the US Consulate issues DV immigrant visa for travel purposes. At this stage it has been confirmed that Green Card holders are exempted from the travel ban, no information as far as temporary DV visa are concerned, as far as I am aware. Please confirm whether you are a LPR already, it does not become quite clear from your original posting. Trump stated in an interview last week that the travel ban will become effective 72 hors after respective Supreme Court order. If you already hold LPR status, with activated Green Card including any immigrant visa endorsement, you should not be affected.
     
    Last edited: Jun 26, 2017
    leawe likes this.
  7. DanE1978

    DanE1978 New Member

    I think it is important to understand where the SCOTUS is coming from - the lower courts have stayed the executive orders because they believed they are injurious to persons and bodies protected by US constitutional law. Today's opinion is consistent with previous rulings of the Supreme Court, according to which US constitutional law barely applies outside the US: those that are protected by the exclusions are not the foreign nationals but the US citizens and bodies that might be affected by the ban, such as familiy members, universities, workplaces etc.

    Out of all visas, those applying within the DV seem to be the least protected by US constitutional law, along with refugees (except refugees already in the US and thus protected by the non-refoulement principle). Even the interests of tourists are indirectly protected by the interests of states that are dependent on tourism. This means that anyone in the process of getting a GC through the DV has no constitutional protection against the the executive order. Although the court did not address the question directly, it seems to imply that such foreign national don't even have standing in this case.

    A different question concerns the process of obtaining the GC. The order seems to be silent about that, but the important part is that the construction the ban relies upon is the inability to receive reliable information from the listed countries. This might mean that those that have already passed the security approval are "safe", but that from now on it would be impossible to pass it. On the other hand, those that actually get a GC become protected from the ban. However, if the USCIS decides to stop giving out GCs, or stop the process at any time, it can very well do so, since all those that have yet to receive a GC are not protected by US law, unless they can show that they will consequently suffer from what the court referred to as "any legally relevant hardship".
     
  8. EURO2014

    EURO2014 Well-Known Member

    Yes, good summary from a pov of already approved and still pending DV applicants, I believe. Presumably we will find out respective details very shortly, if the application of this truly is supposed to begin after 72 hours.
     
  9. SusieQQQ

    SusieQQQ Well-Known Member

    He's already activated.
     
  10. leawe

    leawe Member

    Thanks @SusieQQQ

    @EURO2014 im from sudan and i was dv selected ,just came back after activating my gc... but i left before receiving it

    Hope this order wont affect the dv2017 winners
     
  11. SusieQQQ

    SusieQQQ Well-Known Member

    You're still a "green card holder" even if you don't yet have the plastic green card. I'm so glad you activated quickly!
     
  12. EURO2014

    EURO2014 Well-Known Member

    Thank you for clarifying guys, appreciated. Yes, if you have a visa endorsement (stamp over temporary DV visa) in your passport, you hold LPR status even though you have not yet received the physical Green Card. Hence, you are not affected by this. Congratulations!
     
  13. leawe

    leawe Member

    Thank you guys
     
  14. Britsimon

    Britsimon Super Moderator

    That is a fair assessment of one aspect of the law, but there is another aspect you thoughts are not addressing. That is the laws that control the operation of immigration rules. That is NOT about the question of whether foreigners have rights or not, it is about whether *we* are implementing our laws in a fair and just way.

    Section 202 (a)(1)(A) says "
    (A) Except as specifically provided in paragraph (2) and in sections 101(a)(27) , 201(b)(2)(A)(i) , and 203, no person shall receive any preference or priority or 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."

    That law was introduced several years after the paragraph that gave the president power to halt immigration from certain groups in the interests of the USA (212(f). Section 202 (a)(1)(A) excepts some other paragraphs, but NOT 212(f). A later law is considered to have been written with knowledge of earlier laws, so the lack of an exception toward 212(f) is important.

    This is what the SCOTUS will have to consider in the fall.
     
  15. EURO2014

    EURO2014 Well-Known Member

    Fun fact: from 1999 to 2008, the Supreme Court reversed or vacated (ruled null or void) 80 percent of the cases it reviewed from the 9th Circuit Court of Appeals located in San Francisco.
     
  16. SusieQQQ

    SusieQQQ Well-Known Member

    And in the 9 years after the 9 you quoted??
    Wonder how that compares to other courts whose decisions were taken up there.
     
  17. DanE1978

    DanE1978 New Member


    True, in part - but this is a separate question from the question of how the administration will interpret the limitation of the temporary injunction.


    At this stage it is not about the merits of the case but about the balance of interests. The court made it quite clear that it doesn't believe that foreign nationals, as such, have any vested interest in acquiring a visa. The authority of the President to restrict visas from certain countries based on national security consideration is something the court will probably address when it rules on the merits, but it seems unlikely that it would change its decision in the case of "unconnected" foreign nationals, given its somewhat belittling treatment of the INA in the current opinion. Section 202(a)(1)(A) is later in time, but it is very broad in application, making it subject to lex specialis. It also focuses on the prohibition of discrimination, which will probably be interpreted as the intention to discriminate based on irrelevant considerations. The real question is therefore whether the SC accepts the argument that the ban is, as it appears to be, is aimed against Muslims, as such. If so, the INA is of little importance anyway, since that would make the executive order in violation of the Establishment Clause. It's of course hard to tell what the court will decide, but given its harsh wording on foreign nationals, it seems like it is rather unsympathetic of this argument, as they seem to believe the (rather shaky, IMHO) argument that it is all about national security:


    "(“[A]n unadmitted and nonresident alien . . . has no constitutional right of entry to this country”). So whatever burdens may result from enforcement of §2(c) against a foreign national who lacks any connection to this country, they are, at a minimum, a good deal less concrete than the hardships identified by the courts below. At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.". . . "The interest in preserving national security is “an urgent objective of the highest order.” [...] To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else."


    The SC has shown time and again in the past that when it comes to the interpretation of constitutional and statutory principles with regard to the use of executive powers, foreign nationals, that are not under direct control of the US government, are of little import. It was willing to (silently) accept that if the president can have foreign nationals killed with impunity, it can also do a host of other unpleasant things to them, and that would seem to include arbitrarily denying them a visa (of course that line of argument referred to the commander in chief powers, but it is hardly unrelated to the regulation of foreign affairs). The only question that can really change that, with regard to unconnected foreign nationals, is whether the President indeed acted on religious grounds, and it seems like the SC is unwilling to accept this argument.
     
  18. SusieQQQ

    SusieQQQ Well-Known Member

    Realistically, what % of would-be visa applicants have no family, education or work ties to the US? It must be a very small %. For immigrant visas it's only DV (and then only some, there are enough DV visas that have gone to pole who would have had family or work ones granted in due course anyway). NIV stats must be there somewhere but I presume they don't break down B1/B2s according to whether or not the applicant has any family in the US. Other NIVs afaik would all fall under the exceptions being study, J, O etc and then of course the dual intent H and L.
     
  19. DanE1978

    DanE1978 New Member

    It is important to notice that it is not just about having family in the US, it is whether the family will somehow be hurt if their relative is denied a visa. If I have an uncle in the US but I'm not going there in order to visit him, at his wishing, I am still "unconnected" in this respect. This seems to be part of the reason why Thomas believed this distinction creates an an reasonable burden for the administration.
     
  20. EURO2014

    EURO2014 Well-Known Member

    Supreme Court reversed or vacated 2010 - 2015:

    6th Circuit - 87 percent;

    11th Circuit - 85 percent;

    9th Circuit - 79 percent;

    3rd Circuit - 78 percent;

    2nd Circuit and Federal Circuit - 68 percent;

    8th Circuit - 67 percent;

    5th Circuit - 66 percent;

    7th Circuit - 48 percent;

    DC Circuit - 45 percent;

    1st Circuit and 4th Circuit - 43 percent;

    10th Circuit - 42 percent.

    Rather notable differences here, proving the importance of SC reviews for ultimate legal outcomes in this country. Simply choose the 9th Circuit to make the point, as it has been deeply involved in determinations thus far in this case spelling potential trouble going forward.
     
    Last edited: Jun 27, 2017

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