The U.S. Supreme Court has given the State of Hawaii—whose attorney general has been one of the most ardent opponents of President Trump’s policies—until tomorrow to respond to a Department of Justice (DOJ) filing asking the high court to block a federal judge’s motion related to the scope of the so-called travel ban. President Trump’s March 6 executive order has been allowed to proceed partially since a Supreme Court decision on June 26.

In a ruling last week in Hawaii’s favor, U.S. District Court Judge Derrick Watson ordered that parties exempted from enforcement of the travel ban must include grandparents, grandchildren, uncles, aunts, nephews, nieces, cousins, and brothers- and sisters-in-law. “Common sense … dictates that close family members be defined to include” these relatives, Judge Watson wrote.

Background

As we have reported to our readers at length over the past several weeks, President Trump’s travel ban bars the admission of citizens from Iran, Libya, Somalia, Sudan, Syria, and Yemen to the United States for 90 days, and additionally bans all refugees, regardless of country of origin, from the U.S. for a 120-day period.

After contentious litigation and multiple rounds of appeals earlier this year, the U.S. Supreme Court allowed a scaled-back version of the travel ban to be enforced. (The justices’ decision amounted to a partial reversal of a previous ruling by Judge Watson, which blocked President Trump’s travel ban from being enforced nationwide.) Later this year, the Supreme Court will hear oral arguments in order to determine whether or not the travel ban violates the Constitution.

After the Supreme Court ruling, the federal government issued guidance on family-based exceptions, including only spouses, parents, parents-in-law, children, sons- and daughters-in-law, fiancés, and siblings of individuals already in the U.S. as exempted from the ban.

Current Controversy

The recent judicial fight centers on the as-of-yet unsettled issue of whom the travel ban does and doesn’t apply to.

In its per curiam decision, the Supreme Court ruled that aliens who can demonstrate a “bona fide relationship” with a U.S. “person or entity” would be exempted from the travel ban. The decision singled out individual bona fide relationships to include “close familial relationships,” but stopped short of explicitly defining which family-based relationships would qualify.

The district court ruling hinges on the ambiguity of the bona fide relationship standard. According to Judge Watson, relatives like grandparents are “the epitome of close family members.” “The government’s definition excludes them,” the judge wrote, adding: “That simply cannot be.”

The Trump administration countered that its guidelines are rooted in current immigration law, thereby justifying a more limited scope of exempted family members.

Judge Watson’s ruling additionally concluded that refugees with ties to a resettlement agency meet the threshold for a bona fide relationship with a U.S. entity, and must accordingly be exempted from the travel ban.

Our Thoughts

Banning biological grandparents while allowing the admission of certain in-laws on the basis of the Supreme Court’s standard is perhaps difficult to justify from a moral or commonsense perspective. But it may not be as difficult to do so legally. Indeed, the Supreme Court’s decision to allow the travel ban to proceed, albeit in part, diverged from numerous district- and appellate-level court rulings, the vast majority of which swiftly enjoined the executive order. The high court may once again rule in the administration’s favor.

Notably, the ongoing legal battles—which we expect to continue until the Supreme Court rules on the constitutionality of the travel ban this fall—have thus far involved disputes relating to individual relationships only. The State of Hawaii did not challenge the government’s guidance on business or employment ties to U.S. entities. It remains to be seen whether another plaintiff will.

At present, citizens of the targeted countries who can prove legitimate travel needs related to family, however the Supreme Court decides to define it, or business will not be barred from the U.S. Our firm is continuing to monitor the situation, both in the courts and in practice. 

This is a developing news story, and as more information becomes available, updates will be published on our news section.

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Former U.S. Consular officer, Attorney Sechyi Laiu joined Zhang & Associates, P.C. on June 26, 2017

At Zhang & Associates, P.C., Attorney Laiu specializes on Consular Processing cases and business development. Attorney Laiu also focuses on TN visas, E visas, CBP administrative proceedings (monetary confiscation, deferred inspection), and overseas financial compliance.

Prior to joining Zhang & Associates, P.C., Attorney Laiu worked for the U.S. Department of State as a Chinese and Portuguese speaking diplomat. As a consular-coned officer who served in Vancouver (Canada), Shenyang (P.R. China), and Rio de Janeiro (Brazil), Attorney Laiu processed over 30,000 visa cases and worked in every section of Consular Affairs overseas (Fraud Prevention Unit, Immigrant Visas, Non-Immigrant Visas, and American Citizen Services).

He will use his experience and expertise to deliver the highest quality of service to our clients.

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Founded in 1996, Zhang & Associates, P.C. offers legal services to clients worldwide in all aspects of U.S immigration law. We have successfully handled over ten thousand immigration cases.

At Zhang & Associates, P.C., our attorneys and supporting professionals are committed to providing high-quality immigration and non-immigration visa services. We specialize in NIW, EB-1, EB-5, PERM, I-485 I-130, H-1B, O, L and J cases. In the past twenty-one years, we have successfully helped over ten thousand clients get green cards. If you plan to apply for a green card, please send your CV to Attorney Jerry Zhang (info@hooyou.com) for a free evaluation.

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(07/17/2017)