WASHINGTON — U.S. officials can at least temporarily continue to block refugees with formal assurances from resettlement agencies from entering the United States after the Supreme Court intervened again Monday to save a piece of President Donald Trump’s travel ban.
Responding to an emergency request from the Justice Department, Justice Anthony Kennedy stopped an earlier federal appeals court ruling that had allowed refugees with a formal assurance to enter the country.
Kennedy, who handles cases on an emergency basis from the U.S. Court of Appeals for the 9th Circuit, ordered those suing over the ban to respond by noon Tuesday, and he indicated that the appeals court ruling in their favor would be stayed “pending receipt” of their response.
The Supreme Court’s decision came not long after the Justice Department asked the justices to act. That filing, by Acting Solicitor General Jeffrey Wall, demonstrated the lengths to which the government is willing to go to impose its desired version of the ban, even before the high court takes up in earnest next month whether the measure is lawful at its core. At issue is whether the president can block a group of about 24,000 refugees with assurances from entering the United States after the Supreme Court decided in June to permit a limited version of his travel ban to take effect.
Since Trump signed his first travel ban shortly after taking office, the directive has been mired in a complicated legal battle.
The president ultimately revoked the first ban - which blocked refugees and citizens of seven Muslim-majority countries from entering the United States - and replaced it with a less onerous version that blocked refugees and citizens of six of the initial seven countries. The Supreme Court ultimately decided Trump could impose that measure, but not on those with a “bona fide” connection to the United States, such as having family members here, a job or a place in a U.S. university.
It is the interpretation of a “bona fide” connection to the United States that is being debated. The government initially sought to block grandparents and other extended family members of people in the United States from entering - as well as refugees with formal assurances - though a federal district judge stopped from doing so. The Supreme Court in July largely upheld that ruling, though it put on hold the portion dealing with refugees.
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Last week, a federal appeals court panel weighed in, deciding that the administration could block neither grandparents nor refugees with assurances.
The Justice Department asked the Supreme Court to step in again - though only to block refugees, not grandparents and other extended family members. Even those refugees with formal assurances from a resettlement agency lack the sort of connection that should exempt them from the ban, the Justice Department argued in its filing to the Supreme Court.
“The absence of a formal connection between a resettlement agency and a refugee subject to an assurance stands in stark contrast to the sort of relationships this Court identified as sufficient in its June 26 stay ruling,” Wall wrote in his filing. “Unlike students who have been admitted to study at an American university, workers who have accepted jobs at an American company, and lecturers who come to speak to an American audience, refugees do not have any free-standing connection to resettlement agencies, separate and apart from the refugee-admissions process itself, by virtue of the agencies’ assurance agreement with the government.”
Neal Katyal, a lawyer representing the state of Hawaii, which is challenging the travel ban, wrote on Twitter that he would “fight” the government’s latest request.
The government said the battle is urgent. The U.S. Court of Appeals for the 9th Circuit had said its ruling allowing refugees with resettlement agreements would take effect Tuesday, which Wall asserted could be disruptive.
“The government began implementing the Order subject to the limitations articulated by this Court more than two months ago, on June 29, which entailed extensive, worldwide coordination among multiple agencies and the issuance of guidance to provide clarity and minimize confusion,” Wall wrote.
Time is beginning to become a factor in the broader fight over Trump’s travel ban, with the Supreme Court scheduled to hear arguments Oct. 10.
The measure was supposed to have been temporary - lasting 90 days for citizens of the six affected countries, and 120 days for refugees. If the measure is considered to have taken effect from when the Supreme Court allowed a partial version of it, the 90 days will have passed by the time the justices hear arguments, and the 120 days are very likely to have passed by the time they issue a decision.
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Some deadlines for reports have also seemingly passed. The Department of Homeland Security Secretary was - within 20 days of the order taking effect - supposed to have given Trump the results of a worldwide review determining what information was necessary from other countries’ to vet travelers.
The countries that weren’t supplying adequate information were then to be given 50 days to begin doing so, and after that, top U.S. officials were to give Trump a list of countries recommended for inclusion on a more permanent travel ban.
A Department of Homeland Security spokesman said a report was delivered to the White House in early July on the results of the worldwide review, and officials then went about assessing each country based on the information it provided. “Some provided more, some things were cleared up, and others weren’t,” David Lapan, the spokesman, said. “Now we have a comprehensive understanding of the information we receive from all foreign partners.” He said Homeland Security officials were “evaluating the information received and will provide a report to the president in the coming weeks.”
A State Department spokeswoman said Monday that the department was “engaging with foreign governments to meet these new standards for information sharing” but could not “prejudge the outcome of this engagement.”
“We recognize that many governments will need time to meet any new standards, and we will work to assess and, where necessary, work with foreign governments to design a plan to provide the information requested,” the spokeswoman said.
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The Washington Post’s Robert Barnes contributed to this report.