The Justice Department asked critics of President Donald Trump’s travel ban to leave questions about the scope of the immigration restrictions to the U.S. Supreme Court.
The State of Hawaii is challenging the government’s enforcement of the administration’s executive order [see emergency motion embedded below]. According to the Justice Department’s brief Monday, Hawaii is attempting “to create a dispute where there is none.”
Trump’s lawyers asked a Honolulu federal judge to deny Hawaii’s request for clarification on the restrictions, deeming it unnecessary, and said any orders that limit the scope of the ban should be considered first by the nation’s highest court.
Attorneys for the Trump administration argued that implementation of the travel ban is in accordance with the Supreme Court’s June 26 ruling. That order requires visa applicants from six Muslim-majority countries and refugees worldwide to prove a “bona fide” family relationship to the U.S.
In a filing responding to Hawaii’s challenge, the government said its definition of “close family member” is consistent with the Immigration and Nationality Act. The INA “frames the backdrop for federal immigration policy, including the executive order,” according to the filing. “Even some familial relationships” won’t suffice for visa applicants and refugees because of limits set by the INA that “privileges certain family relationships over others.”
Federal Judge Derrick Watson is likely to rule after July 5 on Hawaii’s request for clarity regarding family ties.
Trump Immigration Ban Meets Law of Unintended Consequences
Hawaii’s challenge is the latest in a dispute between Trump and ideological opponents of the administration’s immigration agenda that’s spanned all but the first 10 days of his presidency. The president scored a legal victory last week when the Supreme Court approved partial enforcement of a narrowed version of the ban.
The Supreme Court said it will hear the administration’s appeal of lower-court orders blocking the ban from taking effect in its next nine-month session starting in October. In the meantime, it allowed the administration to enforce the prohibition with some caveats, such as “bona fide” relationships.
Critics are claiming the government overreached in its execution of the Supreme Court’s order.
Central to the dispute is the question of who constitutes family for applicants seeking refuge or a visa to the U.S. The Supreme Court ruled that the travel ban could be applied for now to everyone except people with a “credible claim of a bona fide relationship with a person or entity in the U.S.”
What is a ‘bona fide’ tie for Trump travel ban? QuickTake Q&A
The government then went on to define “bona fide relationship” as links within a nuclear family, including spouses and children and siblings. That excluded aunts, uncles, grandparents, cousins, and — initially — fiancés. The administration also ruled out any connections between refugees and resettlement agencies, citing the INA as well as the Supreme Court’s decision.
The government quickly backed off on fiancés. In a version of the new rules posted early June 29, fiancés weren’t among those deemed as having “bona fide” ties. But later in the day, without explanation, the State Department updated its guidance to say that fiancés would be treated as close family members.
The Justice Department said Monday that its guidance regarding “credible claims” of a bona fide relationship “explicitly references and incorporates” the Supreme Court’s standard.
Not necessarily, according to Hiroshi Motomura, a professor who teaches immigration law and civil procedure at the UCLA School of Law in Los Angeles. “It’s very clear that the Supreme Court had a broader definition of family in mind,” Motomura said, as evidenced by the high court’s use of the term “familial relationship” in the travel ban ruling rather than “family.”
“What the Court clearly had in mind is a large group of persons and entities in the U.S. whose rights would be violated if the ban turns out to be unlawful — as either unconstitutional or in violating the Immigration and Nationality Act,” Motomura said.
The travel restrictions allow Trump to declare partial victory on his campaign promise to stem the flow of refugees and travelers from nations he deems a security risk. Lower court decisions to block two of his proposed travel bans were early, public defeats for the administration.
Still, the State Department’s definition did nothing to assuage concerns that the impetus of the policy is Trump’s discriminatory intent toward Muslims. The court in Hawaii and another in Maryland ruled that the travel ban is the manifestation of Trump’s campaign promise to deliver a Muslim ban, a violation of first amendment rights to religious freedom.
Nongovernmental organizations and refugee advocates have struggled to determine how many people will actually be affected by the revised restrictions. The U.S. has already admitted about 49,000 refugees this year, just shy of the executive order’s 50,000 cap, which could be breached before Watson rules on Hawaii’s motion.
Hawaii Attorney General Douglas Chin has asked Watson — the same judge who issued a preliminary injunction against the revised travel ban — to clarify the scope of the order claiming the latest restrictions go further than the Supreme Court allowed.
“After days of stonewalling plaintiffs’ repeated requests for information, the government announced that it intended to violate the Supreme Court’s instruction,” Hawaii said in a filing last week in Honolulu federal court. “It will apply the executive order to exclude a host of aliens with a ‘close familial relationship’ to U.S. persons.”
Chin said if the judge can’t immediately provide clarification, the state wants an order barring the government from using the State Department’s definition of family ties.
“Our concern is that when you read their definition of what constitutes a close family relationship, they’re cutting out a lot of people,” Chin said.
The case is State of Hawaii v. Trump, 17-cv-00050, U.S. District Court, District of Hawaii (Honolulu).
–With assistance from Erik Larson
©2017 Bloomberg L.P.