Refugees don't visit the US for Disneyland
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As thousands of refugees continue to cross the U.S.-Mexican and the U.S.-Canadian borders following the Supreme Court's decision on Trump's travel ban, new challenges emerge. In addition to the already chaotic reality refugees from around the world face in America, including discrimination, detention, deportation, and their gradual mischaracterization as terrorists, rapists, criminals, job stealers, and threats to national security, millions of them are now banned from even entering the country.

In effect, the U.S. Supreme Court's order this week on the 'travel ban' has left millions of refugees at the mercy of the Trump administration. As it turns out, the most revealing aspects of the Court order lie not on what it literally states but on what it ultimately implies.

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Both the Mendel precedent cited by the Court (Kleindienst v. Mendel 1972) and the core distinction the Court made between travelers with ties (i.e., bona fide contacts, e.g., employment, education, or close relatives) and without ties (i.e., without precedent, significant, or legal contacts, e.g., tourism, persecution) indicates that the Court's constitutional review will be divided in two parts; one of which, unfortunately, favors the government's most hostile policies toward refugees.

 

Upon its return in October, the Court will first apply the moot test. This test states that unless the controversy before the Court is likely to be repeated, the Court should only hear controversies that are alive at every stage of its review (Defunis v. Odegaard 1976). Yet, since the refugee ban will be still in effect (120 days) by the first week of October when the justices meet again, it is quite possible that the Court will review this section of the executive order. What is more, the content of the order issued this week further suggests that the Court will use the Political Questions Doctrine to uphold the constitutionality of the section concerning travel restrictions on refugees. 

According to this doctrine, no branch of government may intervene with the otherwise constitutionally and naturally allocated political decisions of the executive branch (Baker v. Carr 1962), especially in matters related to foreign policy and national security. In practice, this means that the travel restriction on refugees will be upheld as constitutional and could be even extended if the government believes such refugees —or even others coming from different countries— pose a risk to national security.

The U.S. Department of State has already instructed all its embassies and consulates around the world that refugees from the six banned countries must prove bona fide ties to obtain visas or permits to enter the United States.

In truth, however, refugees do not travel to America to visit Disneyland, attend universities or visit their parents. In fact, the United Nations Refugee Convention of 1951 bestows the status of refugee upon migrants who leave their home states due to persecution. Hence, under international public law at least, requiring refugees to prove bona fide ties is unlawful.

Eventually, the Mendel decision of 1972 was progressively incorporated within the U.S. immigration legal system, which led to an historical debate for decades on whether migrants traveling to America could be denied entry based on their political beliefs. Nowadays, a fundamental question does nonetheless remain: Will the Trump administration succeed in separating religious beliefs from national security concerns despite the originally exhibited motives and the international implications that a more permanent ban on refugees would have? 

Make no mistake, aside from the legal intricacies it raises and no matter what it is called, in a nation built by immigrants, the Trump administration’s Executive Order 13780 becomes a defining test of values for the American society. Once again, past is prologue.

Jose Mauricio Gaona is an O'Brien Fellow at the McGill Center for Human Rights and a Saul Hayes Fellow at McGill University's Faculty of Law.


The views of contributors are their own and not the views of The Hill.