Just as predicted, more litigation, this time an “Emergency Motion to Clarify” the District Court’s prior injunction.
When the Supreme Court reinstated substantially all of Trump’s Travel Order No. 2, the Supreme Court carved out an exception for people who have a “bona fide” relationship to the U.S. Such persons could not be subjected to a blanket, country-wide prohibition from entering the U.S. (emphasis added):
We accordingly grant the Government’s stay applications in part and narrow the scope of the injunctions as to §2(c). The injunctions remain in place only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii. In practical terms, this means that §2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2….
The Government’s application to stay the injunction with respect to §§6(a) and (b) is accordingly granted in part. Section 6(a) may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor may §6(b); that is, such a person may not be excluded pursuant to §6(b), even if the 50,000-
person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.
Section 2(c) applies to the general bar to entry into the country via visas, while Section 6(a) is the temporary halt in refugee entry. For §2(c), the Travel Order continued except as to “parties similarly situated to Doe, Dr. Elshikh, and Hawaii.” “John Doe” was “a lawful permanent resident whose Iranian wife is seeking entry tothe United States.” Dr. Elshikh is “an American citizen and imam whose Syrian mother-in-law is seeking entry to this country.” Hawaii’s alleged interest was in students attending university in Hawaii. So, according to the Supreme Court, §2(c) continues as to persons whose spouse or mother-in-law are seeking admission, or for students enrolled in university in Hawaii. For refugees under §6(a) the Supreme Court used looser language, “a refugee who can credibly claim a bona fide relationship with a person or entity in the United States,” though there is no limiting language as for §2(c).
Three justices (Thomas, Alito, Gorsuch) wanted to go further, and uphold the Travel Order in its entirety.
Part of their reasoning was that since the Travel Order was lawful, trying to parse what constitutes a “bona fide” relationship to the U.S. would generate just more litigation:
I agree with the Court that the preliminary injunctions entered in these cases should be stayed, although I would stay them in full….
Moreover, I fear that the Court’s remedy will prove unworkable. Today’s compromise will burden executive officials with the task of deciding—on peril of contempt— whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country. See ante, at 11–12. The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed “simply to avoid §2(c)” of Executive Order No. 13780, ante, at 11, 12. And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now— unanimously—found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.
That fear is becoming real. The Trump administration issued a new rule, in light of the Supreme Court ruling, defining “bona fide” relationships as:
Parents, spouses, children, siblings, fiancés and sons- or daughters-in-law are approved relationships.
Grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law and other extended family are not accepted as “close family.”
This would appear to be consistent with the Supreme Court ruling, at least as to non-refugee visa entries, considering the language in the Supreme Court Order, “The injunctions remain in place only with respect to parties similarly situated to Doe, Dr. Elshikh, and Hawaii.”
That’s not good enough for one of the litigants, the State of Hawaii, which is suing to expand the definition by means of an Emergency Motion to Clarify, as AP reports, Hawaii challenges family rules on travel ban:
Hawaii filed a court challenge today to the Trump administration’s limitations on the family relationships that people from six mostly Muslim countries need to claim to avoid a travel ban.
The U.S. Supreme Court on Monday exempted people from the ban if they can prove a “bona fide” relationship with a U.S. citizen or entity. The Trump administration had said the exemption would apply to citizens of Syria, Sudan, Somalia, Libya, Iran and Yemen with a parent, spouse, child, adult son or daughter, son-in-law, daughter-in-law or sibling already in the U.S. The administration late today apparently also added fiance to the list of “bona fide” relationships.
Hawaii filed an emergency motion today asking a federal judge to clarify that the administration cannot enforce the ban against fiances or relatives not defined by the administration guidelines.
It appears that at least as to visa entries, Hawaii is trying to expand the limiting language (quoted above) as to who is exempt from the Travel Order:
Second, all of the relationships the Government has deemed nonqualifying—grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law, and fiancés—are “close familial relationships” within the meaning of the Court’s order. Each of these relationships is comparable to (if not closer than) the relationship between Dr. Elshikh and his mother-in-law. They too are within two degrees of consanguinity: i.e., the immediate relative of someone in the person’s nuclear family. A brother-in-law, for instance, is the brother of a U.S. person’s spouse; there is no reason in logic or law why that person is a more distant family member than the mother of a person’s spouse. Likewise, it is inconceivable that a person would claim that he suffers a lesser burden if his grandchildren are excluded from the country than if his mother-in-law is.” [Hawaii memo at 8-9]
The court is likely to rule at the end of next week, given the briefing schedule. The Court entered the following docket entry:
06/29/2017 295 EO: The Court partially lifts the April 3, 2017 stay in this matter for the limited purpose of considering Plaintiffs’ Emergency Motion to Clarify Scope of Preliminary Injunction. Dkt. No. 293 . Defendants shall file their opposition, limited to 20 pages, by Monday, July 3, 2017. Plaintiffs shall file any reply, limited to 15 pages, by Thursday, July 6, 2017. IT IS SO ORDERED. (JUDGE DERRICK K. WATSON)(watson1)
[This post has been updated multiple times]
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