Leah Litman // 7/15/17 //
On the last day of the term, the Supreme Court limited the injunctions against the entry ban and the suspension of the refugee program so that the entry ban and the suspension of the refugee program could be applied to “foreign nationals abroad who have no connection to the United States at all” and “foreign national[s] who lack any connection to this country.” But the Supreme Court opted to keep the injunctions against the entry ban, the suspension of the refugee program, and the refugee cap in place, at least for “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States.” For persons claiming a “bona fide relationship with a person … in the United States,” the Court explained, “a close familial relationship is required.”
The Trump administration has insisted that “a close familial relationship” does not include grandparents or grandchildren (or several other relationships as well). Last night, the district court ruled that the government is wrong, and that the government cannot exclude persons who have grandparents, grandchildren, aunts, uncles, brothers-in-law, sisters-in-law, or cousins in the United States under the terms of the Supreme Court’s injunction. The District Court of Hawaii modified its injunction to enjoin the government’s interpretation of the Supreme Court’s modified injunction against the entry ban and the suspension of the refugee program.
The government’s latest filing in the Supreme Court recycles many of the unpersuasive arguments that it has made before (in filings to the district court and court of appeals). The arguments do not sound any not better when they appear in a filing to the Supreme Court.
The government opens with the dubious claim that the district court’s interpretation of “close familial relationships” “empties the [Supreme] Court’s decision of meaning, as it encompasses not just ‘close’ family members, but virtually all family members.” (Emphasis theirs.) Elsewhere the government insists that the district court’s interpretation “essentially eliminates the ‘close’ requirement by covering virtually every conceivable familial connection.”
That claim is false, and wildly so. If the government really cannot "conceive" of any familial connection that would not be covered by the district court’s interpretation, I can help out and think of a few (and it’s late on Friday night). The district court’s interpretation, for example, does not cover: third cousins; fourth cousins; fifth cousins; or any persons with whom you might share some genetic relationship. It does not cover a large number of people; it just happens to cover a set of relationships that are not too attenuated. The district court was eminently reasonable to do so, and to draw the distinctions it did.
The government then represents that the Supreme Court tied the scope of the injunction to the terms of the Executive Order, which includes a provision authorizing case-by-case waivers for certain individuals. According to the government, “the Court specifically cited the waiver provision, the most relevant subsection of which applies to a foreign national who “seeks to enter the United States to visit or reside with a close family member (e.g., a spouse, child, or parent).”
A few thoughts there—the Court’s full quotation is helpful to understanding this passage in its opinion. It is:
At the same time, the Government’s interest in enforcing §2(c), and the Executive’s authority to do so, are undoubtedly at their peak when there is no tie between the foreign national and the United States. Indeed, EO–2 itself distinguishes between foreign nationals who have some connection to this country, and foreign nationals who do not, by establishing a case-by-case waiver system primarily for the benefit of individuals in the former category. See, e.g., §§3(c)(i)–(vi).
This portion of the Court’s opinion does not define the scope of the injunction the Supreme Court created, or how it modified the injunction. The passage also indicates that the individuals who fall within the scope of the waiver (spouses, children, or parents) fall in the category of close familial relationships but does not say that they define it. On top of that, the government’s definition of the waiver’s scope does not match the Court’s definition of the injunction. The government agrees that it cannot exclude fiancées under the Court’s injunction, but the waiver does not mention fiancées. The Court also listed “mother in laws” as individuals who would “clearly” qualify as “close familial relationships” but the waiver does not mention them either. Thus, the Court did not define the scope of the injunction based on the scope of the waiver provision.
The concluding sentence in the paragraph the government quotes from further undermines the government’s interpretation. The end of that paragraph is:
To prevent the Government from pursuing that objective by enforcing §2(c) against foreign nationals unconnected to the United States would appreciably injure its interests, without alleviating obvious hardship to anyone else.
But enforcing section 2(c) against foreign nationals who have grandchildren or grandparents (or other similarly close family relationships) in the United States would effect an “obvious hardship” on the family. Hawaii’s filing in the district court identified grandparents with close relationships with grandchildren in the United States who wanted to see their grandparents. A social media account has also documented cases of family members who are prevented from seeing one another because of the government’s crabbed interpretation of the Court’s injunction.
Other portions of the Supreme Court’s ruling likewise indicate that the government is misreading the Court's opinion and misrepresenting the significance of the Court’s reference to the waivers. The Court stayed the executive order’s provisions as to “foreign nationals abroad who have no connection to the United States at all.” It refused to do so for other persons similarly situated to the plaintiffs because those persons could suffer a “legally relevant hardship,” the exclusion of their loved ones.
The government’s next argument is that its definition (parents, children, fiancées, and siblings) tracks other definitions in immigration law. There are several problems with this argument that have been discussed before, and the government doesn’t answer any of them. Those arguments include: No definition that appears in the Immigration and Nationality Act tracks the government’s definition of the Supreme Court’s injunction, which includes parents-in-law but not grandparents (or aunts and uncles). The government’s only response to that point is to deny that the Court meant to include mothers-in-law at all (a point I discuss below). Moreover, the other “categories” the government points to in the INA do not purport to define the phrase “close familial relationships,” but that is the operative phrase in the Supreme Court’s injunction (together with the phrase the Court used to define what close familial relationships do not include—persons with no connection to the United States). On top of that, the provisions the government attempts to analogize to serve different functions than the executive order, such as authorizing green cards. As Adam Cox and Ryan Goodman explained:
[A] central reason the immigration code sharply restricts the set of overseas family members entitled to green cards is because of the enormous benefit that status entails. There is, however, no equivalent reason to restrict someone’s ability to visit the country for a short stay— for example, to help take care of a newborn grandchild or to seek family care in the final months of life. And, in fact, existing immigration law does not deny entry for these purposes. Extended family members such as grandparents may still come visit, as tourists or through other channels of admission.
The district court’s ruling does not prevent the government from limiting those other benefits to the categories of persons that are created and defined in (valid provisions of) immigration law.
Indeed, the district court’s ruling does not mean that grandparents or cousins are automatically guaranteed entry into the United States. All it means is that those relationships are not automatically denied entry; those groups of people (i.e., grandmothers) are still subject to the existing entry procedures (which the President has described as EXTREME VETTING). The question is what the “default” rule is for grandparents—whether they are automatically denied entry and have to request a waiver; or whether they are subject to ordinary rules for entry (which are rigorous and demanding).
The government’s last argument is its worst. In some tortured paragraphs the government insists that when the Court said that a “mother in law” “clearly” qualifies as a “close familial relationship” it really meant mothers. Again the passage from the Court’s opinion is instructive:
For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship.
In other words, Dr. Elshikh’s “mother in law” “clearly” qualifies as a “close familial relationship.” The government argues she qualifies only by virtue of her relationship with Dr. Elshikh’s wife, her mother. Thus, the government concludes, mothers-in-law really means mothers.
This argument is bizarre, and the government does not even believe it. The argument is bizarre because the Court described the relevant relationship as that between Dr. Elshikh and his mother in law, not the relationship between Dr. Elshikh’s mother in law and Dr. Elshikh’s wife. Elsewhere in its opinion, the Court stated that the provisions of the executive order are enjoined as to “parties similarly situated to Doe, Dr. Elshikh, and Hawaii,” not “parties similarly situated to Doe, Mrs. Elshikh, and Hawaii.”
The government does not even buy what it is trying to sell. The government has defined “close family” as a “parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half.”
If the government did not think that the Court’s injunction extended to mothers in law or sons in law, it wouldn’t have listed those relationships as the kinds of “close familial relationships” that are covered by the Supreme Court’s injunction. But it did.
The government’s interpretation also makes no sense. Dr. Elshikh’s relationship with his mother in law would not change if his wife unexpectedly passed away; he would still be as familiar with her as he was before his wife died; and they would still be “close famil[y].”
We’ll see what the Supreme Court has to say.
[Note: There is more to say about the government's challenge to the district court's ruling that assurances from a refugee resettlement agency qualify as a bona fide relationship with an entity in the United States. But it's getting late! For other coverage of the government's interpretation, see here, here, here, here, here, here, or other places.]