Alameda County
Bar Association

The Supreme Court reinstates partial Muslim ban, sets the case for this Fall 
# No Muslim Ban

by Spojmie Nasiri

Immigration Law under Trump Presidency and Immigrant RightsWant to learn more? Attend our “Immigration Law Under Trump Presidency and Immigrant Rights” CLE training with Spojmie Nasiri on July 12th at noon.

Learn more and register here

Despite several defeats in the federal trial courts and the appeals courts, earlier this week the Supreme Court did the unimaginable. The Supreme Court allowed part of President Trump’s unconstitutional Muslim ban to take effect within 72 hours by barring Muslims from six banned countries from entering the United States who do not connection to the Untied States while the Court considers President Trump’s complete ban.

Is it a Muslim Ban?

It is a Muslim Ban because the ban targets Muslim majority countries and provides exceptions for minorities within these countries who are not Muslims.  The ACLU stated this morning “Let’s be clear: Trump’s so-called “travel ban” is a ban that targets Muslims – just what he promised to do. Allowing the ban to go into effect would green light religious discrimination and it would devastate families across this country, who would be separated from their loved ones based on Trump’s belief that their religion “hates us.”

In addition, President Trump openly campaigned on the promise of a “total and complete shutdown of Muslims entering the United States.” His executive order includes a specific caveat for non-Muslim refugees, and the day that it was signed, Trump went on Christian Broadcasting Network and said Christian refugees in particular would be given priority. The next day, Rudy Giuliani, one of his advisers, went on Fox News and said that the order came about after Trump asked him about the best way to do a Muslim ban “legally.”  Furthermore, the son of  the now resigned National Security Advisor Michael Flynn similarly called it a Muslim ban on Twitter. All of these data points could be considered in a final ruling on the current ban or in a decision on the possible revised ban by the Supreme Court this Fall.

Individuals Affected by the Muslim Ban:

Original Muslim Ban:

On January 27, 2017, through an executive order, President Trump’s original Muslim Ban barred people from Muslim majority countries including Iran, Iraq, Syria, Yemen, Sudan, Somalia and Libya from entering the United States for a period of 90 days. In addition, the Muslim Ban also stopped the refugee resettlement program for a period of 120 days and indefinitely banned Syrian refugees from entering the United States.  This executive order stated the seven countries were on the ban list because these countries were either considered a state sponsor of terrorism by the United States or countries that have been compromised by terrorist organizations. On February 14, 2017, a United State district judge in Virginia ruled the first executive order was unconstitutional because it had “religious bias at its heart.” In addition, an appeals court in Virginia ruled along the same lines on the second Muslin ban.

Revised Muslim Ban:

On March 6, 2017, President Trump signed an executive order for a revised Muslim Ban. This ban removed Iraq from the banned list after Iraq agreed to additional requirements by the United States . The Muslim ban also removed the indefinite ban of Syrian refugees.  In addition, the new revised Muslim Ban clarified the confusion that Lawful Permanent Residents of the United States and individuals with dual citizenship holders from the seven banned countries would be allowed entry to the US.

The revised Muslim Ban included waivers on a case-by-case basis if denying entry would “cause undue hardship” to:

  1. Individuals who need urgent medical care
  2. Individuals employed by the United States government
  3. Individuals seeking to visit or live with United States Lawful Permanent Residents or United States citizens
  4. Individuals who were previously admitted to the United States for work or to study.

The Hawaii Court ruled the ban was Anti-Muslim. The court stated “the illogic of the government’s contentions is palpable. The notation that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”  The court ruling stated that the “countries’ populations were between 90% and 99% Muslim.”

Current Partial Reinstatement of Muslim Ban by the United States Supreme Court:

Monday, on second day of Eid (Muslim holiday marking the ending of Ramadan), the United States Supreme decided the Court would allow parts of the Muslim ban to stand and would set the case for oral arguments on the legality of the full ban this Fall.  An injunction on the Muslim ban was lifted and portions of it will be allowed within 72 hours of the Supreme Court decision.  In essence, the reinstatement of the partial Muslim Ban means that individuals from the six Muslim majority countries including Iran, Syria, Yemen, Sudan, Somalia and Libya can travel to the United States only if they “have a credible claim of a bona fide relationship with a person or entity in the United States.”  In its decision, the Supreme Court states that bona fide relationships are the following:

  1. “For individuals, a close familial relationship is required.”
  2. “As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading” the order.
  3. If a student has already registered at a United States University, or a worker who has already accepted an offer of employment in the United States or an individual was already invited to provide a lecture, then these individuals would be allowed entry to the United States.

After reading the Supreme Court decision, my thoughts are that we will start seeing the same chaos and confusion we witnessed during the first Muslim Ban on January 27, 2017 across airports in the United States and around the world as there are currently there are no clear guidance issued to Customs Border Patrol and in the past the Trump Administration has failed to provide guidance as to how the Supreme Court ruling should be interpreted. It is the the United States embassies and consulates that have to enforce this partial Muslim Ban and with lack of guidance, many Muslims will be unlawfully barred entry to the United States from these six banned countries. As a result, we will likely see an increase in lawsuits in the appeals and federal courts on the issue of what constitutes a “bona fide relationship”, “person”, or “entity” as this exception discussed in the ruling is very broad and covers “anyone with a credible claim of a bona fide relationship with a person or entity in the United States.”

Without a doubt, this partial ban will create chaos and confusion at United State Embassies and consulates around the world. Despite the limitations of the Supreme Court decision today, the Trump administration will take every opportunity to go further with this partial ban.

Nonetheless, despite this small set back, I am optimistic that the law will be on our side and we will prevail in the end. We Muslims are not alone in this fight. Our allies, including immigration attorneys and civil rights advocates including CAIR, ACLU, Asian Law Cause and countless other organizations around the nation will challenge every aspect of this partial Muslim ban, despite Trump’s administration attempts to overreach this discriminatory and unconstitutional ban.

Spojmie NasiriLaw Office of Spojmie Nasiri

Mrs. Nasiri has extensive experience with all types of immigration and deportation defense matters. She has conducted know-your-rights presentations on a variety of legal issues affecting immigrant groups at the West County Detention Center in Richmond, California and Yuba County Detention Facility in Marysville, California. Mrs. Nasiri assists clients with a wide variety of immigration matters, including applications with the consulates and U.S. Citizenship and Immigration Services, representing clients detained by the Department of Homeland Security, defending immigrants in removal proceedings in Immigration Court, and representing clients in criminal immigration proceedings in federal court. She currently serves as President of the Counsel on American Islamic Relations (CAIR) for the San Francisco Bay Area Chapter. 

Immigration Law under Trump Presidency and Immigrant RightsWant to learn more? Attend our “Immigration Law Under Trump Presidency and Immigrant Rights” CLE training with Spojmie Nasiri on July 12th at noon.

Learn more and register here