This is a follow-up to the Supreme Court’s decision on June 26, 2017 which allowed the Trump Administration’s Travel Ban affecting nationals of the six designated Muslim-majority countries to be partially implemented until its hearing on the merits in the fall. The Supreme Court specifically exempted people with a “bona fide connection” to a person or entity in the United States.

As we reported on July 17, 2017, the U.S. Department of State interpreted this exemption to be applicable to only “close relatives,” limiting it to parents, spouses, fiancés, sons or daughters, siblings, sons-in-law, and daughters-in-law, and excluding resettlement organizations as qualifying U.S. entities for refugees. The U.S. District Court for the District of Hawaii then ruled that additional relatives in the U.S. and refugees accepted by resettlement organizations in the U.S. could qualify for purposes of this exemption from the ban. The Justice Department immediately appealed this decision. The Trump Administration asked the Supreme Court to clarify its June 26th decision. On July 19th, in a one-paragraph ruling, the Supreme Court refused to clarify its prior decision, but it allowed the Hawaii court decision expanding the categories of relatives to stand, pending the appeal of this decision by the Trump Administration to the 9th Circuit Court of Appeals. The additional qualifying relative relationships include grandparents, grandchildren, aunts, uncles, nieces, nephews, and cousins.

However, the Supreme Court stayed the lower court’s decision regarding refugees. Accordingly, at this time the relationship between a refugee and a sponsoring agency is not sufficient to overcome the travel ban, and only refugees with qualifying family relationships will be able to overcome the ban. This currently affects approximately 24,000 waiting refugees.

This issue continues to evolve, and we will continue to provide updates following breaking developments.

On Monday, June 26th, the U.S. Supreme Court (SCOTUS) issued a mixed decision in the “Travel Ban” litigation, relating to Presidential Executive Order 13780 (“EO”). As explained in more detail below, the SCOTUS decision gave a partial victory to the respondents who had challenged the EO while at the same time upholding the travel ban and related provisions for certain foreign nationals who cannot demonstrate a sufficient nexus to a family member, employer, educational institution or other entity in the U.S.

The Supreme Court granted certiorari and consolidated the two federal court cases from the 9th Circuit Court of Appeals and the 4th Circuit Court of Appeals. It will hear arguments in the consolidated case in the Court’s October, 2017 term.

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The U.S. Supreme Court has ruled unanimously that naturalized American citizens cannot be stripped of citizenship if a lie or omission in the application process was irrelevant to the government’s decision to approve the naturalization application in the first place. The ruling in Maslenjak vs. U.S. will ultimately make it more difficult for the government to revoke citizenship, rejecting both the current and prior administrations’ position that all lies–even minor ones–can lead to loss of citizenship.

The case involved an ethnic Serb who lied about her husband’s military service during her refugee processing, obscuring his service in the Bosnian Serb Army. When later applying for naturalization, she falsely claimed that she had never given false or misleading information when seeking an immigration benefit. Divna Maslenjak arrived in the U.S. as a refugee in 2000 and became a citizen in 2007. In 2013, however, she admitted that her husband had indeed served in the Bosnian Serb Army, ultimately resulting in her conviction for making false statements on her application for naturalization, and eventually revocation of her U.S. citizenship for having been obtained “contrary to law.”

Maslenjak appealed, contending that, when the underlying offense in a citizenship revocation case is a false statement, the government must prove that the truth would have negatively influenced the original decision. The Sixth Circuit Court of Appeals disagreed, ruling that the government need not establish that Maslenjak’s misrepresentations were material to the original naturalization decision.

On June 22, the Supreme Court overturned the Sixth Circuit’s decision, focusing on the causal relationship between the violation and the acquisition of citizenship. The Court was particularly troubled that the government’s position results in a “mismatch between the requirements for naturalization on the one hand and those for denaturalization on the other” and the uncertainty this mismatch imposes on naturalized U.S. citizens.

The case will now return to the lower courts. Maslenjak’s U.S. citizenship could remain revoked, but only if the lower court determines that her false statements were in fact material to the approval of her naturalization application.

This ruling significantly raises the bar for revocation of citizenship. Requiring the government to show that it would have denied a citizenship application had it known the truth will make it more difficult for citizenship to be revoked. Even if the naturalized citizen’s lie had a real potential to affect the naturalization decision, the government will have to demonstrate not only that the lie could have impacted the decision, but that it actually would have made a difference. By disallowing revocation based on factors that might not have resulted in denial in the first instance, the Court provides naturalized U.S. citizens much greater security in their new status.

The Supreme Court will hear the Obama administration’s appeal of the 5th Circuit Court’s decision to uphold the nationwide injunction of the expansion of Deferred Action for Children (DACA) and implementation of Deferred Action for Parents of Americans (DAPA) set by federal Judge Andrew Hanen in Texas.

In addition to the procedural issues of comment and potential harm discussed in the lower courts, the Supreme Court asked both, “the federal government and the states suing it to address whether the executive actions on immigration violate the Constitution’s take care clause — an issue that was not definitively decided by lower courts that have ruled on the case.”

On Tuesday, December 1, the U.S. Supreme Court handed the Obama administration a “small procedural vactory” and refused the request of Texas and other states for a 30-day extension to file briefs in support of the lawsuit blocking the Obama administration’s immigration executive action on DACA and DAPA. Instead, the Court accepted the Justice Department’s eight day extension request. The Supreme Court will likely decide in January whether or not to hear the case this term. If the Supreme Court hears the case during the current term, the decision would likely be published in June, providing quite the fan-flaming event during the 2016 presidential election.

Continue Reading Supreme Court Rejects States’ Request for 30 Day Filing Extension on DACA, DAPA

On November 9, 2015, the United States Court of Appeals for the Fifth Circuit issued their 124 page decision upholding a nation-wide injunction of the Deferred Action for Parents of Americans and Lawful Permanent Residents program (“DAPA”). Based on the 5th Circuit decision, the 2012 DACA program remains intact, however the 2014 expansions are enjoined. The 5th Circuit head oral arguments over six months ago, and the delay in issuing their decision likely forecloses the possibility of a formal appeal being heard by the U.S. Supreme Court before the 2016 presidential elections. However, as the Obama administration filed an appeal today (November 20th), the Supreme could hear the case this term, hold it for next term, or decline to hear the case altogether.
Continue Reading 5th Circuit Upholds Deferred Action for Parents: Next Stop Supreme Court?

Yesterday, in an opinion authored by Justice Ruth Bader Ginsburg, the U.S. Supreme Court brought a measure of hope to non-citizens facing deportation on the basis of certain minor criminal convictions. In Mellouli v. Lynch, the Court ruled that Moones Mellouli, a lawful permanent resident, could not be removed from the United States on the basis of his Kansas conviction for concealing unnamed pills in his sock.

The Court’s decision took the Board of Immigration Appeals (“BIA”) to task for routinely applying inconsistent standards in its decision-making. Under federal law, an individual is subject to removal from the United States on the basis of a state “drug-related” conviction if the controlled substance at issue appears on the federal government’s list of controlled substances. If the controlled substance is on the state list, but not on the federal list, the conviction does not render the individual removable from the U.S. Continue Reading The Supreme Court Takes the BIA to Task