In the latest twist in the travel ban wars, Judge Derrick Watson issued an order late Thursday night finding that the Trump administration’s definition of close family for the purposes of exclusion from the ban is too narrow. In response to last month’s Supreme Court ruling sanctioning part of the ban but voiding it for travelers with “close family” in the United States, the administration issued guidance that defined “close family” as parents or parents-in-law, a spouse, children, siblings, and step and half siblings. (Subsequently, they added fiancées as a protected group.) Judge Watson wrote that the government’s cramped definition—which excluded grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other “extended” family members—“represents the antithesis of common sense.”
Watson was the same judge who issued an injunction in March blocking the second version of Trump’s executive order. That travel ban called for a 90-day pause on travel to the United States from six majority-Muslim countries and a 120-day hiatus on refugee resettlement. Watson’s injunction was upheld by the 9th U.S. Circuit Court of Appeals. But at the end of June, the Supreme Court ordered that a modified version of the travel ban would be allowed to go into effect. Effective immediately, however, travelers able to show a “bona fide relationship with a person or entity in the United States” would be allowed to come here.
The court explained:
For individuals, a close familial relationship is required. 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. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2.
It was easy to predict tons of litigation over what a bona fide relationship constituted, and so it’s come to pass.
In addition to the “close familial” relationship challenge, there’s now a challenge on behalf of refugees over what kind of relationship with a U.S. entity counts as being “formed in the ordinary course” and not merely to evade the order. Trump issued incredibly narrow guidance for entities that would have precluded many such refugees.
That guidance declared “the fact that a resettlement agency in the United States has provided a formal assurance for a refugee seeking admission ... is not sufficient in and of itself to establish a qualifying relationship for that refugee with an entity in the United States.” Watson also disagreed with this.
Hawaii and 15 other states had challenged the government’s definitions of “bona fide” U.S. connections in Watson’s court. With respect to the definition of family relationships, Watson found that the government had defined “close familial relationships” by “cherry picking” from select parts of the Immigration Nationality Act to craft the narrowest possible definition of family. He wrote that the very statutes they relied upon excluded, for instance, mothers-in-law—a category the Supreme Court expressly named as a “bona fide family member.” He cites Supreme Court cases—which are, by the way, frequently written by grandparents—that have broadly defined family to include, say, grandparents. Watson points out tartly that “grandparents are the epitome of close family members. The Government’s definition excludes them. That simply cannot be.”
Judge Watson then turns to the refugees. The Supreme Court had held that a relationship with a refugee agency would not constitute the kind of bona fide relationship the court was contemplating. But in his order, Watson found that refugees who can show “formal assurance” from resettlement agencies for relocation cannot be barred, contradicting the guidance.
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.
As he concludes, “Bona fide does not get any more bona fide than that.”
On Wednesday, refugee admissions came to a halt as the U.S. reached the 50,000-person cap set by the Trump administration, which went into effect after the Supreme Court’s ruling in June. Refugees with family connections sanctioned by the court were still to be allowed in. Having broadened the class of permissible refugees, Watson’s ruling may allow thousands more to come in. The Justice Department will appeal. There is no longer any doubt that we will be experiencing a long hot summer of filings in the federal courts. And as a marker of where we are in Trump v. Judges, it raises the stakes for whatever is to come October at the Supreme Court. For the moment, though, Americans can rest assured that even in Trump’s America, your grandma is still a bona fide family member.