UPDATE: Only Wednesday, July 19, 2017, the Supreme Court denied the Justice Department’s request to clarify their June 26, 2017 order. This leaves standing the District Court of Hawaii’s injunction, which stops DoS and DHS from enforcing their narrow interpretation of the ban exempting grandparents and other family members from President Trump’s travel and refugee bans.
In late June, the Supreme Court of the United States (SCOTUS) granted the government’s petition to review the Fourth and Ninth Circuit decisions enjoining the President’s second travel ban.
For now, all nine justices agreed that the lower court injunctions were too broad, and they narrowed the injunctions to apply only to those who lack a bona fide relationship with an American individual or entity in the United States.
Hours after the decision allowing part of the government’s travel ban to go into effect, the Plaintiffs in the Ninth Circuit case filed an emergency motion for clarification in District Court looking for guidance about what a bona fide relationship entails, but the District Court denied the motion and instructed them to seek clarification from the Supreme Court.
Not to be deterred, the Plaintiffs then appealed the ruling to the Ninth Circuit on July 7, 2017. Although that court quickly shot down their appeal as well, it suggested the Plaintiffs consider filing for an injunction against the government’s implementation of the order—primarily their definition of bona fide relationship—in District Court. The definition set forth by the administration excluded grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins from the list of qualifying as close familial relationships—aka, bona fide relationships.
Last Friday, that resulting motion led the District Court of Hawaii to stop the Departments of State (DoS) and Homeland Security (DHS) from enforcing their narrow interpretation of SCOTUS’ ruling. Further, the Court also enjoined DoS and DHS from excluding refugees who have a formal assurance from a refugee agency in the U.S. to provide reception or placement services to that refugee, or who are in the Lautenberg Refugee Admissions Program.
Understanding the court procedures and resultant policy is a difficult task that changes almost weekly—we can yet another ruling tomorrow. Below are a list of questions and answers to help you understand the current scope of the travel ban.
Who is allowed to come into the United States?
The following individuals—among other small groups—are eligible to enter the U.S., even if they are from one of the six banned countries—Iran, Sudan, Syria, Yemen, Libya, and Somalia:
- Legal permanent residents;
- Dual nationals that have a passport issued by a country other than the six listed;
- Individuals with a valid visa as of June 26, 2017 (the date of the SCOTUS decision);
- Individuals with diplomatic visas and NATO visas; and
- Asylees and refugees already admitted into the U.S., who were granted withholding of removal, or received protection under the Convention Against Torture or advanced parole.
Furthermore, all individuals who were present in the U.S. on June 26, 2017, or who have a valid multiple-entry visa will be permitted to enter.
What is a bona fide relationship and why is it important?
In their decision, SCOTUS created a new standard to enjoin only a portion of those intended to be covered by the travel ban. The ban may only be enforced against those who “lack any bona fide relationship with a person or entity in the United States.”
Unfortunately, the Court did not define the term bona fide relationship (BFR), but suggested that a close familial relationship and a formal, documented relationship with an entity would suffice. For example, the Court suggested that a spouse and mother-in-law relationship is a close enough familial relationship.
What is a formal, documented relationship with a U.S. entity?
If an individual does not have a bona fide relationship through close family ties, they must have a BFR with an entity in the U.S. to enter, meaning they need to have a formal, documented relationship with a U.S. entity.
The Supreme Court identified a few clear examples of what this relationship should look like. If a student was accepted at an American school, or if a prospective employee had a job offer from a U.S. employer, that constitutes a BFR.
Why is the bona fide relationship standard causing problems?
There are several reasons the BFR standard will continue to plague the administration and interested parties until the case is decided later this year.
First, neither “close familial relationship” or “entity” is in the Immigration and Nationality Act. To figure out whether a BFR exists, potential immigrants and nonimmigrants must know who in America is considered a person with whom they may have a close familial relationship and what qualifies as an entity.
In immigration law, existing provisions about family focus on immediate relatives—like spouses, children, brothers and sisters, and parents. However, the Court’s use of a mother-in-law possibly indicates that they intend the definition of close familial relationship to extend well beyond what the current law includes for purposes of the travel ban.
Similarly, “entity” is not defined by the INA. So far, the only guidance is the standard definition of entity as an organization (such as a business or governmental unit) that has an identity separate from those of its members.
What guidelines did DoS put into place clarifying what a bona fide relationship entails?
Days after the SCOTUS ruling, the DoS issued its narrow interpretation of the new bona fide relationship standard in an effort to provide more concrete guidance to consular officials about the scope of the standard.
In it, the administration excluded from the list of qualifying “close familial relationships” grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins.
Further, the guidance excluded refugees who have a formal assurance from a U.S. refugee agency that they would receive resettlement or reception services, and it excluded refugees that are already in the Lautenberg Program.
How did the most recent court ruling change DoS guidance?
The ruling from Judge Derrick Watson on July 13, 2017 essentially invalidated the narrow interpretation of the SCOTUS ruling made by the DoS.
Although the government did try to rely on the INA for guidance about what a close familial relationship might entail, the District Court ruled that they cherry-picked their references, and failed to provide any reasonable rationale for their truncated reading of the SCOTUS ruling. Ultimately, the Court found that, “the Government’s definition represents the antithesis of common sense.”
Who is likely to be excluded now?
Without a bona fide relationship, many individuals face exclusion, including:
- Tourists
- Business travelers (B-1 visas) coming for short term travel
- Diversity visa applicants
- Other employment visa holders, like EB-1 and EB-5 visas for investors
What can we expect next?
In response to the most recent ruling, the DOJ appealed to the Supreme Court decision late last Friday to allow grandparents, grandchildren, aunts, uncles, and other relatives of people in the U.S. to circumvent the Trump administration’s travel ban policy.
Saturday morning, SCOTUS filed a motion calling for the Hawaii court to respond to the Justice Department’s request. In the meantime, the SCOTUS ruling stands, as does the broader interpretation of its standards. Attorney General Jeff Sessions promised to return to the Supreme Court to overturn the district court’s interpretation.
We can expect oral arguments before the Supreme Court in October.