Memo on Impact of Supreme Court Decision on Travel Ban

June 27, 2017

On Monday, June 26, 2017, the United States Supreme Court issued a limited stay in the case that MESA has joined as a plaintiff, IRAP v. Trump, partially reinstating the revised Executive Order (EO) from March 6, 2017 (for MESA’s statement on EO 13780 see here). The Supreme Court’s decision will allow the EO to go into effect except with respect to those individuals who have a “bona fide relationship” with a person or entity in the United States. The Supreme Court explained that a “bona fide relationship” includes anyone with family in the United States, or anyone who has a relationship with an entity in the United States. The Court also enumerated specific examples of who might qualify as having a relationship with an entity in the U.S., including a student who has been accepted at an American university, or someone who has accepted employment with an American company, or someone invited to give a lecture to an American audience. For all others affected by the EO, the ban on entry will take effect in 72 hours after today’s order (on Thursday, June 29). This includes nationals of six countries—Iran, Libya, Somalia, Sudan, Syria and Yemen—and refugees who do not have a bona fide relationship with a U.S. person or entity. For nationals of the six countries the travel restriction will remain in place for 90 days; for refugees there will be a 120-day suspension of admission to the U.S.

The Supreme Court also announced that it will hear the full legal challenge to the exclusionary travel ban in the upcoming term that starts in October. MESA will continue to act as a plaintiff in that case represented by the ACLU.

The exception to the travel ban announced by the Court today should protect current students (including those admitted to begin their studies in Fall 2017), those already employed by American universities and colleges, and those already invited to give academic lectures in the United States. The government will likely issue guidance in the coming days regarding how it will assess whether individuals have qualifying ties to the United States.  The remaining restrictions on entry into the United States and the enhanced screening mechanisms that have already gone into effect threaten the academic community’s ability to sustain critical engagement with colleagues from the affected countries. The countries singled out by the Executive Order are all within the Middle East as defined by MESA. Their citizens have suffered enormous violence and dispossession, and the Middle East Studies academic community has both a professional and an ethical responsibility to defend their rights.

MESA’s Task Force on Civil and Human Rights was established by the MESA Board in November 2016 to supplement the work of the MESA Committee on Academic Freedom (CAF) by addressing threats to the civil rights, human rights and political freedoms of the Middle East Studies community broadly defined. We believe that the exclusions of people from six Muslim-majority countries is discriminatory and does damage to academic institutions in the United States. We continue to believe that the EO is at odds with fundamental principles upheld by MESA including the commitment to the free exchange of ideas. MESA will continue its role in the legal fight against the ban and the threat to academic freedom that it represents.

The Task Force is issuing this updated statement, which revises our earlier statements of January 29, 2017 and March 8, 2017 to alert the Middle East Studies community to the probable consequences of the Supreme Court’s decision.

The current 90-day travel ban applies to foreign nationals from the designated countries who: do not have a “bona fide relationship” with a U.S. person or entity, are outside of the U.S. on June 29, 2017, did not have a valid visa at 5pm EST on January 27, 2017 and do not have a valid visa on June 29, 2017. The new EO also suspends all travel into the United States of refugees who do not have a “bona fide relationship” with a U.S. person or entity for 120 days beginning June 29, 2017.

The travel restrictions do not apply to green card holders (lawful permanent residents) or to dual nationals from one of the designated countries traveling on a passport from a non-designated country. The travel restrictions reinstated by the Supreme Court also do not apply to Iraqi nationals (the EO affecting Iraqi nationals was revoked on March 6, 2017).

The Supreme Court’s stay authorizes a foreign national admitted to school for study or hired for work in the U.S. or invited to serve as a lecturer before an American audience to seek a visa based on their “credible claim” to have a ““bona fide relationship” with a U.S. person or entity. This carve-out should be applicable to many MESA members.

Beyond these exemptions, the Supreme Court’s partial reinstatement of the Executive Order has the following effects, among others, that may have consequences for those in the field of Middle East Studies:

  • The restriction of entry to the United States for certain nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days.  This restriction could bar students or scholars from these countries from travel to the U.S. for the next three months unless they hold an American passport or green card, are a dual national (with a second nationality from a non-designated country), have been admitted to study at a U.S. institution, hired to work for a U.S. institution or invited to lecture to an American audience, or otherwise have bona fide connections to a U.S. person or entity. Academic institutions should closely follow changes in the interpretation of the Order as legal challenges and agency interpretations begin to unfold.
  • Any nationals of the six listed countries (who are not also U.S. citizens, green card holders or dual nationals) currently present in the U.S. on valid visas should avoid foreign travel as they may face challenges to readmission to the United States. Because of the administrative uncertainty surrounding the implementation of the Executive Order, we recommend that nationals of these countries err on the side of caution. Academic institutions should prepare to support faculty, staff and students legally remaining in the United States until more is learned about the treatment of valid visa holders who seek readmission during the period of entry restriction.
  • Those nationals from the six listed countries (who are not also U.S. citizens, green card holders or dual nationals) currently present in the U.S. with valid visas may be affected by the Order when they seek to renew their visas. The Order refers to restriction of entry and travel of nationals from these countries (rather than suspension of visa processing) but there is no provision to suggest that nationals of these countries will be able to seek visa renewals during the period of restriction of entry. The Supreme Court’s reinstatement of the EO does not directly address this issue. Because the language of the Order is ambiguous, academic institutions should prepare to support affected faculty, staff and students legally in the United States who may be left unable to renew their visas.
  • Applications for admission to American universities at the undergraduate and graduate level may be disrupted by the Executive Order. We advise academic institutions to avoid compromising their admissions standards in anticipation of new immigration policies and to continue to solicit and process applications from the affected countries. We also advise academic institutions to maintain their hiring standards and consider qualified scholars and researchers from the affected countries as candidates in competitive application processes for faculty hiring and selection of post-doctoral scholars.
  • The suspension of refugee admissions to the United States for 120 days (except for those refugees who can make a “credible claim” of a “bona fide relationship” with a U.S. person or entity) may undermine the ability of refugee students and refugee scholars to apply to American universities with which they do not already have a relationship during a period of four months (which may be further extended). This may also affect efforts by many academic institutions to assist scholars at risk through temporary academic appointments. We advise academic institutions to assist scholars and students fleeing dangerous conditions by continuing to admit refugee students and hire refugee scholars, anticipating that visa processing may be possible based on establishing these individuals’ “bona fide relationship” with a U.S. person or entity.
  • The impact of these travel restrictions on campuses across the country can be somewhat mitigated by university administrators who adopt measures to support affected faculty, staff and students. We advise university administrators to maintain a firm commitment to the privacy of personal records, including immigration information, of students and personnel. Under federal law, the enforcement of immigration law rests with federal immigration authorities. Accordingly, campus police may be directed not to participate in immigration enforcement and we advise universities to adopt guidelines to this effect. Finally, the Order may limit the ability of affected individuals to comply with campus procedures and deadlines as they grapple with visa status and entry obstacles. We advise university administrators to interpret all relevant requirements flexibly to maximize the ability of affected individuals to continue their studies and/or employment despite the implementation of the Order.

The MESA Task Force on Civil and Human Rights will closely follow the interpretation and enforcement of the Supreme Court’s decision of June 26th, 2017 partially reinstating Executive Order 13780 and provide updated information and guidance as they become available.


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