//  9/5/17  //  In-Depth Analysis

When my mom resumed her PhD studies after I was born, my grandma looked after me.  She took time off from her own job to watch her grandchild, without any hesitation. My aunt, then a young teacher, spent much of her meager salary on installing a new crib for me in my grandmother’s home. Oceans now separate me from my grandmother and aunt, and yet we remain close. I went to law school because of my grandmother, inspired by her selfless service and pioneering feminism that created so many opportunities for others.

But at the Ninth Circuit’s oral argument in Hawaii v. Trump last Monday, the Justice Department argued that grandmothers and aunts like mine should remain covered by the Travel Ban, because they are not close familial relations. If that doesn’t seem very persuasive, that’s because it isn’t. Perhaps that is to be expected when the Trump Administration’s underlying goal all along has been to penalize Americans like me for being Muslim, and to tell Muslims worldwide that they’re not wanted or welcome here.

To provide some context, the oral argument centered on interpreting the Supreme Court’s June 26, 2017 order, which narrowed the scope of preliminary injunctions entered by lower courts against enforcement of the Travel Ban. The Supreme Court held that the injunctions “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,” specifying that such a relationship with a person must be “a close familial relationship” (like that with a mother-in-law), while one with an entity must be “formal, documented, and formed in the ordinary course” (like that with an employer or admitting university).

In its subsequent guidance, the Trump Administration interpreted “close familial relationship” as excluding relations such as grandparents, and further barred refugees with assurances from American resettlement agencies. After another bout of litigation, the district court issued a modified injunction, specifying that the Travel Ban could not apply to (1) “siblings-in-law, cousins, nieces, nephews, aunts, uncles, grandparents, and grandchildren” of Americans, (2) nor those refugees with assurances from resettlement agencies. After the Justice Department asked the Justices to intervene, the Supreme Court stayed only the resettlement agency part of the modified injunction, pending the disposition of an appeal to the Ninth Circuit. The Supreme Court otherwise refused to further clarify its June 26 order, or to decide the appeal itself in the first instance. Thus, at argument last Monday, the Ninth Circuit was tasked with interpreting what the Court meant by “bona fide relationship.” That may be hard to glean, as the term is no term of art and not born from any precedent or references to statutory law. As Judge Hawkins remarked, “[This is] one of the toughest things . . . We’re trying to create a remedy that will satisfy the United States Supreme Court.”

Based on the argument, it appears likely that the Ninth Circuit will uphold the part of the modified injunction specifying close familial relationships. After all, the government’s attempts to justify its distinction between grandmothers and mothers-in-law amounted to little more than grasping at straws. Deputy Assistant Attorney General Hashim Mooppan argued that mothers-in-law qualified as close family members because in a marriage, a spouse’s parents become akin to one’s own. Thus, he said, mothers-in-law are only one step removed from the nuclear family unit, thereby constituting a close familial relation, unlike grandmothers, who are apparently further removed. Aside from making it clear that the government has never seen an episode of Everybody Loves Raymond (insert meddlesome mother-in-law joke here), this touching tribute to mothers-in-law only further highlighted the implausibility and insensitivity of discounting grandmothers as close familial relationships. If parents-in-law are just “one step removed” from the nuclear family unit, it is hard to see how grandparents, who often help raise grandchildren, would not be.

Indeed, the Ninth Circuit seemed to recognize the absurdity behind classifying grandparents or aunts and uncles as distant relations: Judge Gould asked, “In what universe does that come from?”

In support of upholding the modified injunction, counsel to the plaintiffs cited Moore v. City of E. Cleveland, where the Supreme Court described “uncles, aunts, cousins, [and] grandparents” as “close relatives.” Mr. Mooppan, in turn, relied on INS statutes with narrow lists of qualifying family relationships—although those statutes use a more restrictive term than appears in the Supreme Court order (“immediate family” rather than “close family”). As the Ninth Circuit panel pointed out, if the Supreme Court had meant to refer to immediate family members, it surely would have done so.

Mr. Mooppan further sought to overturn the modified injunction on administrability concerns. However, he was unable to articulate why exempting grandparents from the Travel Ban would be any more un-administrable than exempting mothers-in-law. At one point, Mr. Mooppan remarked, “It’s hard to intuit what the Supreme Court might have thought” in defining close familial relationships. That’s certainly true, in terms of articulating a precise definition. But it’s easy enough to intuit that they weren’t thinking of excluding grandparents on the peculiar ground that it’s administratively easier to identify mothers-in-law than grandparents.

It is more uncertain whether the Ninth Circuit will hold that refugees with only assurances from a resettlement agency should be exempt from the Travel Ban. Mr. Mooppan argued that the Supreme Court’s stay of that part of the preliminary injunction indicates that the Justices felt the government likely would succeed on the merits of its position. Moreover, he contended that assurances do not create relationships at all between refugees and resettlement agencies, as resettlement agencies do not assist refugees until they already have arrived in the United States. There is some force to these contentions.

However, the Ninth Circuit panel repeatedly pushed back against Mr. Mooppan’s assertion that the only relationship created by assurances exists between the government and the resettlement agency.  At times, the panel pointed out that although the relationship is formally between the agency and the government, it is about (and for the benefit of) the refugee. In that sense, the refugee is very much part of the arrangement—not unlike intended third beneficiaries of agreements, who in contract law are regularly deemed to have legally protectable interests in dealings between other parties. 

These exchanges at oral argument suggested that the judges have not foreclosed the possibility of upholding this part of the injunction. Indeed, when Judge Paez asked Mr. Mooppan where exactly the Supreme Court had opined that the relationship between the foreign national and the entity must be “direct,” Mr. Mooppan seemed to struggle. Eventually, Judge Hawkins interrupted, “So, nowhere.”

In addition, the panel explored the possibility that the Supreme Court reached opposite conclusions in evaluating the modified injunction based on relevant differences between immigration law, which has extensive statutory provisions and greater Congressional oversight, and the refugee program, where the Executive has more flexibility.  Counsel to the plaintiffs replied that these differences were immaterial because the Supreme Court had not factored that analysis into its June 26 Order, which treated refugees like other foreign nationals. It is not apparent whether the panel was persuaded.

Notably, the government did not provide a national security rationale for overturning the modified injunction. As a formal matter, this makes sense, since the argument focused on interpreting the scope of the Supreme Court’s decision. But as a practical matter, the government’s omission was striking. Mr. Mooppan never explained why the asserted purposes of the Travel Ban—including the security bases cited post hoc by President Trump’s lawyers—support including grandmas while excluding mothers-in-law. The frailty of the distinctions now at issue point up the pettiness and cruelty of the Travel Ban, and confirm there is no reason for it other than to stigmatize Muslims.

As I watched the oral argument, I thought of how my own Muslim grandmother and aunt had visited me earlier this summer, to help with a family medical emergency. I’m not sure how we would have managed without them. On the last day of their trip, I took my grandma and aunt to the beach. My grandmother had never glimpsed the ocean before, so I took her to it, the vast Atlantic that we must always cross to see each other. Her laughter—her happiness as the tidal waves gushed forward, washing over her feet, clumping the grainy bits of sand beneath her toes—will forever be one of the happiest memories of my life. Just me, the ocean, and one of my closest familial relations.

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