Amir Ali // 6/29/17 //
The New York Times is reporting that the Administration has issued new guidelines for implementing the Supreme Court’s travel ban compromise, which ordered the Administration to exempt people with “a credible claim of a bona fide relationship with a person or entity in the United States.” Assuming the Times’ description is accurate, it looks like the Administration is not going to make a good faith effort to effectuate the Court's order.
According to the Times, the Administration has drawn the following arbitrary line for what qualifies as a “close familial relationship”: Nuclear family and in-laws are in. Any other family—“grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-laws and sisters-in-law, fiancés”—is out.
This reading shows little respect for the Supreme Court’s directive.
First, recognize that the reason that the Court limited the lower court injunctions in the first place was to account for “foreign nationals abroad who have no connection to the United States at all.” The burden imposed when denying entry is at a minimum when it comes to “a foreign national who lacks any connection to this country.” Thus, the Court said, what matters is “a credible claim of a bona fide relationship with a person or entity in the United States.” For the Administration to read that reasoning and conclude that a person’s grandparent or fiance in the US is per se insufficient is troubling, to say the least.
Second, the Administration’s interpretation conflicts with the Court’s explanation of who can and cannot be subject to the ban. When defining “close familial relationship,” the Court gave the example of a mother-in-law, and stated that a mother-in-law would “clearly satisfy such a relationship.” Reasonable people would find it extremely counterintuitive that a person’s mother-in-law “clearly” qualifies as close, but his or her grandparents do not. In fact, the Administration’s interpretation is even more extreme: A person’s relationship with his or her grandparents or fiancé is so remote that it is per se excluded from being a “close familial relationship.” Even if a person was raised exclusively by his or her grandparents, those grandparents would not be considered a “close familial relationship.”
The Supreme Court gave "wife" and "mother-in-law" as its examples because those were the relationships of the particular plaintiffs before the Court. By essentially taking those examples and making them the outer limit, the Administration has frustrated the Court’s desire to protect people who would face similar “concrete burdens” if denied entry.
The State Department seems to be acting as though it were in the position of an administrative agency that will receive leeway and deference to adopt its own preferred interpretation of a particular statute. It is not. It was ordered by the Supreme Court of the United States to ensure that it did not apply its travel ban to certain people. It should make a good faith effort to listen.