The U.S. Supreme Court on Wednesday temporarily allowed the Trump administration to enforce restrictions on the nation’s refugee program, but it let stand a court order from Hawaii that grandparents and other relatives who want to travel to the United States to visit family must be admitted while the case proceeds on appeal.
The justices, in a brief order, rejected the administration’s request that it clarifies the scope of their decision last month temporarily reinstating the ban but allowing people with “a credible claim of a bona fide relationship with a person or entity in the United States” to enter the country. The court said the United States Court of Appeals for the Ninth Circuit, in San Francisco, should address the question.
Justices Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch said they would have blocked the Federal District Court in Hawaii entire order while the case proceeds, including the part that allowed grandparents and other relatives of United States residents to travel from six mostly Muslim countries.
The administration has read the Supreme Court’s decision last month narrowly, excluding many travelers from six mostly Muslim countries with family members in the United States, as well as many refugees.
Last week, Judge Derrick K. Watson of Federal District Court in Honolulu ruled that the administration’s approach had disregarded the Supreme Court’s ruling, fairness and the conventional understanding of who counts as a close family member. “Common sense, for instance, dictates that close family members be defined to include grandparents,” he wrote. “Indeed, grandparents are the epitome of close family members. The government’s definition excludes them. That simply cannot be.
Attorney General Jeff Sessions criticized the ruling the following day in a statement. “The district court has improperly substituted its policy preferences for the national security judgments of the executive branch in a time of grave threats, defying both the lawful prerogatives of the executive branch and the directive of the Supreme Court,” Mr. Sessions said. “The district court has issued decisions that are entrusted to the executive branch, undermined national security, delayed necessary action, created confusion, and violated a proper respect for the separation of powers.”
Later that day, the administration filed a motion asking the Supreme Court to clarify its decision.
The Supreme Court’s decision last month did not specify who qualified as a close relative, though it did say that spouses and mothers-in-law “clearly” counted.
The State Department, in interpreting the ruling, said that parents, children, spouses, parents-in-law, sons- and daughters-in-law, fiancés and siblings of those already in the United States would be included. Close relations would not include grandparents, grandchildren, uncles, aunts, nephews, nieces, cousins, and brothers- and sisters-in-law.
The department said it drew on guidelines set out in some provisions of the immigration laws. Judge Watson responded that other provisions are more expensive, and include grandparents, grandchildren, aunts, uncles, brothers-in-law, and sisters-in law.
The administration also excluded refugees whom resettlement agencies had planned to assist in moving to the United States. Judge Watson disagreed, writing that the Supreme Court had meant to allow such people to enter the country.
“An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones,” he wrote. “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.”
In its Supreme Court brief, the Justice Department said the Judge Watson’s ruling “would render the refugee portion of this court’s decision effectively meaningless.”
Lawyers for Hawaii challenging the travel ban disputed that assertion. They said about 24,000 refugees have a formal assurance of help from a settlement agency, while another 175,000 in the pipeline do not. “Many of those refugees — as well as countless visa applicants from the targeted nations — will be unable to demonstrate any other form of bona fide relationship with an American party, meaning that they will be absolutely barred from entering the country in the next several months,” the brief said.
Judge Watson’s order, the brief said, did nothing to stop the administration from enforcing its travel ban “against more than 85 percent of refugees, or to exclude countless extended family members — second cousins, great-aunts, and so forth — and other individuals who indisputably lack close relationships with American individuals and entities.”
Challenges to Trump’s travel bans have been ricocheting around the federal courts for almost as long as he has been president.
His first ban, issued in January, caused chaos at the nation’s airports until it was blocked by the courts. Rather than appealing to the Supreme Court, the administration issued a revised executive order in March. But that order, too, was blocked by federal appeals courts, which ruled that it violated the Constitution by discriminating based on religion and that it exceeded Trump’s statutory authority.
In June, the Supreme Court agreed to hear appeals from those decisions, scheduling arguments for October.
Report courtesy New York Times
Frontpage October 21, 2019