Trump Administration Suffers Another Court Defeat On Travel Ban
At the end of its October 2016 term earlier this summer, the Supreme Court issued a ruling regarding the Trump Administration’s Executive Order that banned travel from six predominantly Muslim nations that upheld the ban in some respects but also ruled that it could not be applied to all immigrants from these nations. Previously, of course, Federal Judges across the nation had issued rulings that had placed the ruling on hold largely on the grounds that it sought to improperly ban people from entering the country based solely on their religion. These rulings were upheld in rulings by the Fourth and Ninth Circuit Courts of Appeal in May and June respectively. In its ruling, the Court held that the travel ban could go into effect, but that it would remain in effect for individuals with what it described as a bona fide relationship with the United States, such as someone who had already been issued a visa for student or business purposes or certain close family members of people who were U.S. citizens or had Permanent Resident status in the United States. Since the issue was not directly before it, though, the Court did not exactly define what kind of family relationship would qualify as a “bona fide” family relationship.
Inevitably, this led to disputes over how to interpret that parts of the Court’s decision. The Trump Administration took the position that the exemption from the ban would only cover certain family relationships such as husbands, wives, children, in-laws, and other similarly close relationships. Other persons, such as cousins, aunts, uncles, grandparents and the like would not be eligible for an exemption from the ban. Muslim immigrants and citizens in the United States, as well as the Attorneys General originally involved in the litigation challenging the ban, meanwhile, argued that the exemption should be interpreted as broadly as possible to cover more than just the direct relationships that the Administration contended would receive an exemption from the ban. This, of course, led to litigation back at the District Court level as Plaintiffs asked the Judges who had initially entered the stay to interpret the Supreme Court’s ruling broadly. In a ruling in July, a Federal District Judge in Hawaii sided with the Plaintiffs and ruled that the bona fide exemption applied at least to grandparents as well as the other family relationships the Administration had conceded were allowed into the country. The Administration appealed that decision to the Ninth Circuit Court of Appeals, and yesterday a three judge panel from that Court ruled in favor of the Plaintiffs:
LOS ANGELES — A federal appeals court on Thursday reopened the country’s door to thousands of refugees who had been temporarily blocked by President Trump’s travel ban, and also upheld a lower court decision that had exempted grandparents and other relatives from the ban.
The ruling, from the United States Court of Appeals for the Ninth Circuit in Seattle, was cheered by refugee resettlement organizations, and clarified, for now, who was covered by the ban.
In June, the Supreme Court allowed parts of President Trump’s executive order temporarily barring all travelers from six predominantly Muslim countries, and all refugees, to take effect while the court considered arguments over whether such a ban was constitutional. But the court said the government should let in travelers and refugees with a “bona fide relationship with a person or entity in the United States,” without fully defining what that meant.
The administration defined it as immediate family members and in-laws, but not grandparents, cousins, aunts and uncles. It also excluded refugees whose only tie to the United States was to the resettlement agency that was working to bring them into the country.
In July, Judge Derrick K. Watson of Federal District Court in Honolulu disagreed with that interpretation for both refugees and relatives, and the administration appealed to the United States Court of Appeals for the Ninth Circuit.
Justice Department lawyers argued that only parents, children, siblings and in-laws constitute close relatives. But the three judges of the appellate court, Michael Hawkins, Ronald Gould and Richard Paez, all appointees of President Bill Clinton, upheld Judge Watson’s decision on Thursday.
“Stated simply, the government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not,” the 37-page opinion said.
They also said that working with a resettlement agency meets the standard for a “bona fide” relationship with an entity in the United States. Justice Department lawyers argued that a resettlement agency has a relationship with the government, which contracts with the agency to assist refugees, but does not have a formal relationship with the refugees themselves.
In rejecting that claim, the judges wrote: “A resettlement agency provides pre-arrival services for a formally assured refugee and engages in an intensive process to match the individual to resources even before the refugee is admitted. These efforts, which the formal assurance embodies, evince a bona fide relationship between a resettlement agency and a refugee.”
In a statement, a Justice Department spokesman said the agency would appeal the decision. “The Supreme Court has stepped in to correct these lower courts before, and we will now return to the Supreme Court to vindicate the executive branch’s duty to protect the nation.” In its June order, the Supreme Court rejected parts of earlier rulings by both the judge in Hawaii and the same appeals court.
In its decision, the Court emphatically rejected the Trump Administration’s interpretation of the Supreme Court’s ruling:
The Government unreasonably interprets the Supreme Court’s reference to ”close familial relationship[s].” Trump, 137 S. Ct. at 2088. The Supreme Court granted the stay “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” Id. at 2087 (emphasis added). The Court criticized the lower courts’ preliminary injunctions because the injunctions barred enforcement of the Executive Order “against foreign nationals abroad who have no connection to the United States at all.” Id. at 2088 (emphasis added). The Court explained that, in considering the stay, the balance of equities favored the Government because an injunction covering “foreign nationals unconnected to the United States” would “appreciably injure [the Government’s] interests, without alleviating obvious hardship to anyone else.” Id. (emphasis added); see also id. (“[T]he Government’s interest in enforcing § 2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States.” (emphasis added)).
In crafting the stay, the Supreme Court “balance[d] the equities,” id. at 2087, and declined to stay the injunction for foreign nationals whose exclusion would burden any American party by inflicting “concrete . . . hardships,” id. at 2088. The Supreme Court went on to illustrate the types of qualifying “close” familial relationships, explaining, “[a] foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship.” Id. (emphasis added).
From this explanation, it is clear that the Supreme Court’s use of “close familial relationship[s]” meant that the Court wanted to exclude individuals who have no connection with the United States or have remote familial relationships that would not qualify as “bona fide.” Id. The Government does not meaningfully argue how grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States can be considered to have “no connection” to or “lack any bona fide relationship” with persons in the United States. Nor does the Government explain how its proposed scope of exclusion would avoid the infliction of concrete hardships on such individuals’ family members in the United States. Stated simply, the Government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not.
On its face, it seems clear that the Ninth Circuit ruling is largely correct. While the Justices did not clearly define what a “bona fide relationship” with the United States is with regard to familial relationships, it seems fairly clear from reading their opinion that they did not intend for it to be interpreted as narrowly as the Trump Administration wanted to. As the Ninth Circuit said if in-laws are a sufficient bona fide relationship to make them someone entitled to an exemption from the travel ban, then there’s no logical reason why grandparents, grandchildren, aunts, uncles, nieces, nephews, or cousins should not also be entitled to the same exemption. This is especially true given the fact that, in many families, people often have a closer relationship with people in the second group than they do with, say, a brother-in-law or sister-in-law, one of their children, or any of the other people in the first group that the Federal Government has already conceded fall within the exemption that the Supreme Court created in its ruling.
This ruling applies both to people seeking to immigrate or visit the United States and to people seeking entry as a refugee from nations such as Syria. In the second respect, the Administration’s overly narrow reading of the Supreme Court’s opinion had meant that the refugee resettlement program had been essentially shut down since late June when the Supreme Court ruling was issued. This ruling means that, at least for now, that program can be revived at least as far as it applies to people seeking refugee status who have the kind of bona fide relationship with the United States that falls within the ruling issued by the Court as it has been interpreted by the lower Courts. It also means that people seeking visas for travel to the United States from the six affected countries will be permitted to come here so long as they have the kind of relationship with the United States that qualifies under the exemptions that the Courts have held apply based on that June ruling.
The Trump Administration has already indicated that it would appeal yesterday’s decision, but it’s unclear which avenue they will pursue. Initially, they could seek to have the panel’s decision reviewed by the full Ninth Circuit but that would require permission from the court. As I’ve noted before, en banc review of this type is not frequently granted, however. Additionally, given the fact that the Ninth Circuit is dominated by Democratic appointees at the moment, it seems unlikely that the Administration would fare any better before the full court than they did before this particular panel, which by chance happened to be made up of three Judges appointed by former President Clinton. The other alternative, of course, would be to seek review by the Supreme Court of both the stay that was upheld by the Ninth Circuit and the underlying interpretation of its June ruling. At the very least, though, we’re unlikely to get any clarification of the June ruling from the Justices until some time in October after its new term begins on October 2nd. Until then, the stay will remain in effect.
Here’s the Ninth Circuit’s opinion: