In response to the Supreme Court’s ruling earlier this week, Donald Trump’s State Department sent a cable to the United States’ diplomatic posts explaining how officials should implement the president’s Muslim travel ban. The administration’s new guidance pushes the court-sanctioned implementation to be as restrictive as possible. It was also issued in secret, which means the administration is doing its damnedest to prevent the legal challenges that will surely follow. The guidance makes clear, though, that this version of the travel ban will not affect nearly as many of people as the original ban did, nor will it be as severe as the second version of the ban would have been had the court allowed it to go into full effect.
On Monday, the Supreme Court limited the ban to individuals who do not have a connection to a U.S. entity or a “close familial relationship” with a person in the United States. That vague description—the court cited only the example of a relationship with a mother-in-law and spouse—allowed the State Department to craft its own rules. What they came up with is the most limited plausible definition that falls within those boundaries. From the State Department’s guidance:
“Close family” is defined as a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half. This includes step relationships. “Close family” does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other “extended” family members.
The agency acknowledges at another point in the guidance that most non-immigrant visas are exempt from review under the travel ban because “their bona fide relationship to a person or entity is inherent in the visa classification.” Familial relationships are also often required for immigrant visas; there are special visa categories for spouses, parents, and siblings that will also be exempted from the travel ban based on this new guidance.
Who isn’t exempt from the travel ban?
What’s left, it seems are a small number of visas that visitors from the six countries in question—Iran, Libya, Somalia, Sudan, Syria, and Yemen—don’t even use that often: independent media visas for those without a U.S. business connection (I visas), crewmen visas for air and sea companies that don’t have some U.S. connection (C-1 and D visas), tourist visas (B visas), fiancée visas (K visas), and refugee travel documents.
It’s these last three categories that will affect the most people and face the most significant legal challenge. Say an Iranian woman wants to visit her American granddaughter in California on a tourist visa. Under this guidance she would be blocked. It seems possible that a court could decide a grandmother does in fact have a “close” familial relationship with her granddaughter. It’s also possible, though, that a judge could decide that the government drew within the lines. “I could see courts providing a lot of leeway to the agency to make that [familial] determination through the doctrines of deference to agency decisionmaking,” Pratheepan Gulasekaram, a professor of immigration and constitutional law at Santa Clara University School of Law, told me via email.
Gulasekaram does think the government might run into trouble with its decision to exclude fiancées. An entire visa category, K-1, already exists for people who are engaged to be married. There’s no sound rationale for excluding them while including in-laws, who don’t have their own such visa category. “I'm not sure why that makes sense, and certainly is something I would predict could and would be litigated,” Gulasekaram wrote. “It may not affect a huge number of people, but it’s an odd way to draw a line.”
One final point: I wrote earlier this week that the administration might attempt to hide behind the doctrine of consular nonreviewability in order to obscure its decisionmaking around the issuance of individual visas. This State Department guidance—although it was not issued publicly—is a tacit acknowledgement that there are now official guidelines in place regarding what does and doesn’t qualify as a close family relationship. Gulasekaram said this guidance could allow the courts to review decisions that might otherwise have been hidden—a district judge might issue a ruling on whether the State Department’s interpretation of “close” family relationship is in fact the correct one. If courts decide a grandmother should get the same treatment as a mother-in-law, then Trump’s feeble travel ban could become completely impotent.