Common Sense, Close Family, and Bona Fide Relationships: Hawaii Judge Expands Classes Exempt from Travel Ban

Photo via The Guardian

Written By Ian Ludd

 

ABSTRACT

Hawaii U.S. District Judge Derrick Watson ruled last Thursday that the government definition of “close family member” with respect to the Trump Administration’s Travel Ban exemption defies common sense, expanding the exemption to include grandparents, other family members, and refugees with formal assurances from a resettlement agency.

DISCUSSION

For the purposes of an exemption in the Trump Administration’s Revision Travel Ban (“EO-2”), Hawaii Judge Derrick Watson ruled that a grandparent is a “close family member,” despite the assertions to the contrary by the Government.

The Supreme Court, on June 26, in a per curiam opinion, specified that the stay on enforcement of EO-2 will remain in place for all who have a “credible claim of a bona fide relationship with a person or entity in the United States.” For a bona fide relationship with a “person” to be found, a close familial relationship is required. A relationship with an “entity” requires a formal, documented relationship formed “in the ordinary course, rather than for the purpose of evading EO-2.”

The Trump Administration, in issuing guidance to its agencies on the application and enforcement of EO-2, defined “close familial relationship” narrowly, excluding from its definition, grandparents, grandchildren, aunts, and uncles, amongst other family members. The Hawaii District Court found this definition to be the “antithesis of common sense,” contrary to the Supreme Court’s per curiam decision and other precedent.

The Government’s asserted definition of close family stemmed from a provision of the Immigration and Nationality Act (“INA”), applicable to family-based immigration visas. Nevertheless, the District Court found the use of this definition to be “cherry-picking,” ignoring other relevant immigration statutes that defined close family in a much broader sense.

The Hawaii District Court cited several Supreme Court cases evincing a preference for broad definitions of “close family.” The District Court pointed to the Supreme Court’s focus on a relationship nexus, reasoning that if the Supreme Court had intended to issue an exception only to “immediate family members,” it would have explicitly done so. Furthermore, the District Court reasoned that the definition used by the Government is inherently flawed, as it excludes “mothers-in-law,” despite the Supreme Court explicitly holding that EO-2 may not be enforced against a plaintiff’s mother-in-law and those “similarly situated.”

The District Court also found that refugees covered by a formal assurance between the Government and a United States refugee resettlement agency may not be excluded by EO-2. The Government argued that any contract in such an arrangement exists only between the State Department and the resettlement agency, not the refugee. The District Court found this argument unconvincing.

“Nothing in the Supreme Court’s decision requires a refugee to enter into a contract with a United States entity in order to demonstrate the type of formal relationship necessary to avoid the effects of EO-2. An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades. Bona fide does not get any more bona fide than that.”

The Trump Administration, bypassing the Ninth Circuit, asked the Supreme Court directly to clarify its per curiam ruling and to block the ruling by the Hawaii District Court. On July 19, 2017, the Supreme Court denied the Government’s motion for clarification in a brief unsigned order. The Court further stated that “[t]he District Court order modifying the preliminary injunction with respect to refugees covered by a formal assurance is stayed pending resolution of the Government’s appeal to the Court of Appeals for the Ninth Circuit.”

The Supreme Court is set to definitively rule on the Revised Travel Ban this October.

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Sources Cited

Trump v. Int’l Refugee Assistance Project, Nos. 16-1436 (16A1190) and 16-1540 (16A1191), slip op. (U.S. June 26, 2017).

Hawaii, et al. v. Trump, et al., Civil No. 17-00050 DKW-KSC (D. Haw. July 13, 2017) (order granting in part and denying in part plaintiffs’ motion to enforce, or in the alternative, to modify preliminary injunction).

Barbara Campbell, et al., U.S. Challenges Hawaii Judge’s Expansion of Relatives Exempt From Travel Ban, NPR (July 14, 2017).

Joel Rose & Bill Chappell, Supreme Court Revives Parts Of Trump’s Travel Ban As It Agrees To Hear Case, NPR (June 26, 2017).

Julia Edwards Ainsley, et al., Supreme Court gives Hawaii until Tuesday to answer Trump travel ban motion, REUTERS (July 15, 2017).

Adam Liptak, Trump Refugee Restrictions Allowed for Now; Ban on Grandparents Is Rejected, N.Y. Times (July 19, 2017).

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