On July 6th, we covered the United States Supreme Court decision regarding President Trump’s travel ban. That Order limited the entry of foreign nationals and refugees based on an individual’s “bona fide relationship” with an entity or person in the United States and capped the number of refugees that may enter for 2017 at 50,000.
Implementation has been one of the major practical concerns in all of the immigration-related Executive Orders – the SCOTUS decision is no different.
In its June ruling, the Supreme Court ordered that individuals with a “bona fide relationship” to the United States are exempt from the Executive Order’s restrictions. Although the Supreme Court offered a general definition of what may qualify as a “bona fide relationship,” many uncertainties remain. The Trump Administration interpreted the Court’s language narrowly, applying the ban to grandparents, aunts, uncles, nieces, nephews, and other family members. Moreover, the State Department defined close family as a “parent, spouse, fiancé, child, adult son/daughter, son/daughter-in law, sibling, including step relationships.”
On Thursday, July 14, 2017, United States District Court Judge Derrick Watson for the District of Hawaii ruled that the travel ban cannot be enforced for individuals with close familial relationships with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nephews, or cousins in the United States. In its ruling, Judge Watson stated the Government’s definition of “close familial relationship…is unduly restrictive” and “represents the antitheses of common sense.” Conversely to the Trump Administration’s implementation of the Supreme Court’s ruling, Judge Watson reasoned that grandparents “are the epitome of close family members.” The District Court also ruled that any refugee who has connections to a resettlement agency in the United States is exempt from the travel ban. The District Court’s ruling could admit approximately 24,000 additional refugees into the United States.
In response to the District Court of Hawaii’s decision, on July 14, 2017, the Trump Administration filed a motion with the Supreme Court to block the District Court’s ruling and overturn the decision and filed a similar request in the Ninth Circuit Court of Appeals. In its response, the state of Hawaii urged the Supreme Court to leave the federal judge’s ruling in place. Moreover, the state of Hawaii asked for the Supreme Court to allow the lower courts to clarify the June 26th decision, whereas in its July 14thmotion the Trump Administration emphasized the need for clarity to come solely from the Supreme Court. On July 19th, the U.S. Supreme Court denied the government’s motion seeking clarification of its June 26th Order, but the lower court’s order with respect to refugees was stayed pending the government’s Ninth Circuit appeal.
The take-away from the recent activity is that grandparents are exempt from the Executive Order’s restrictions, but refugees are not. The immigration community is now keeping an eye on the Ninth Circuit’s decision, and the U.S. Supreme Court’s review in October.