WASHINGTON — Immigration attorneys called for greater scrutiny of how the Trump administration carries out the president’s travel ban after the U.S. Supreme Court upheld the presidential order in a split decision handed down Tuesday.
The 5-4 ruling effectively ended legal challenges based on unconstitutional religious discrimination against the third version of President Donald Trump’s travel ban issued last September, although the high court returned the case to the U.S. District Court in Hawaii for final disposition.
Now, the Departments of State, Justice and Homeland Security will continue the travel ban that went into effect in December, when the Supreme Court lifted the nationwide injunction against the order. The order now affects Iran, Libya, North Korea, Syria, Somalia, Venezuela and Yemen.
The administration will continue reviews of countries’ willingness and ability to give U.S. authorities sufficient security information about their citizens who want to travel to the United States and grant visa waivers on a case-by-case basis.
The American Civil Liberties Union and other immigrant advocacy groups that have sued the administration over the travel ban on Tuesday called on Congress to overturn it with legislation. That appears to be a long shot given that many members of the Republican majority applauded the court’s ruling.
But Jeremy McKinney, a Greensboro, North Carolina, attorney and a board member of the American Immigration Lawyers Association based in Washington, D.C., said his group will be looking for unlawful discrimination in the administration’s review of countries and its handling of visa waivers.
Anita Sinha, a law professor and director of the International Human Rights Law Clinic at American University’s Washington College of Law, said the majority opinion made clear that “what saved this last iteration was the visa waiver option.”
Attorney Muzaffar Chishti, director of the Migration Policy Institute’s office at the NYU School of Law, said there is only one possibility of further review of the travel ban. “The law on its face is constitutional and lawful but in its application it may not be,” Chishti said.
Justice Stephen Breyer in his dissent said the paucity of visa waivers to allow U.S. entry of residents of the affected countries in the months after the Supreme Court lifted the nationwide injunction on the executive order was a “cause for concern.”
Breyer cited a State Department report that it issued visa waivers to just two of 6,555 eligible applicants in the first two months of the ban, and that government lawyers in the case said the number of visa waivers rose to 430 by the end of the first four months.
“Why only are we seeing only a small number of approvals? It doesn’t make any sense,” said McKinney. “We really have to dig deeper into this waiver process, for the vast, vast majority of these applicants for these waivers should be granted because these individuals pose no threat to our country.”
Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project, who with immigrant-rights groups challenged the travel ban in court for religious discrimination against Muslims, warned: “Nothing in today’s decision suggests that anything else the Trump administration has done to immigrants is OK or would pass statutory review.”