The Volokh Conspiracy

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Trump administration tries to circumvent Supreme Court travel ban ruling


A Syrian refugee child at an informal tent settlement near the Syrian border in Jordan in June 2016. (Muhammed Muheisen/Associated Press)

On Monday, the Supreme Court lifted parts of the lower court injunctions against President Trump's travel ban executive order, which suspends entry of citizens of six Muslim-majority nations into the United States, and suspends all refugee admissions for 120 days. But it also ruled that the injunctions hold when it comes to "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States."

Yesterday, the Trump administration issued guidelines implementing those parts of the travel ban that it now views as permissible. Key parts of those guidelines are so indefensible that they can only be regarded as attempts to circumvent the Court's decision.

I. The Absurd Claim that Grandparents Do Not Qualify as "Close" Relatives.

The most egregious part of the Administration's new policy is its absurdly narrow definition of what counts as a family relationship close enough to qualify as a "bona fide" tie to the United States. The Supreme Court indicated that "[f]or 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." It is pretty obvious this means that a family relationship as close as that which people generally have with their mother or father-in-law should be sufficient. The Administration, however, interprets this to include parents-in-law, but exclude foreign nationals who are "grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-laws and sisters-in-law, fiancés, and any other 'extended' family members" of residents of the United States. The administration appears to have reversed course when it comes to fiancés, but so far not on the grandparents and other relatives.

You don't have to be a lawyer or an expert on family dynamics to be able to see that most people have at least as close family relationships with their grandparents, grandchildren, and (in many cases) aunts and uncles, as they do with their in-laws. To further underscore the point, the Supreme Court emphasized that it is only lifting the lower court injunctions with respect to "foreign nationals abroad who have no connection to the United States at all" (emphasis added). That description surely does not apply to people who have grandchildren, grandparents, or other similarly close relatives in the US.

The administration's failure to recognize this reeks of either incompetence or blatant bad faith. Frankly, I suspect the latter. The administration does not lack for competent lawyers. And it surely has staff with sufficient common sense to recognize that the relationship most people have with their grandparents is at least as close a family connection as that which they have with their in-laws. You don't even need any specialized expertise to recognize that. Several commentators have already skewered this part of the administration's policy in detail, including Marty Lederman, Leah Litman, and Amir Ali.

Josh Blackman argues that some of the types of relatives excluded under the administration's guidance are ones denied priority under other provisions of immigration law. But nothing in the Court's ruling says that its definition of a "close familial relationship" tracks those provisions. To the contrary, it obviously does not, since it covers mothers-in-law, while the statutes Blackman references do not.

Unlike the laws cited by Blackman, Trump's executive order categorically bars entry into the United States by the people it covers. By contrast, the immigration laws merely deny some family relationships the priority given to others, but do not categorically bar people who only have the less-favored relationships. Moreover, none of those laws treat grandparents and grandchildren, less favorably than in-laws—the absurd approach now adopted by the administration.

II. Refugees who have Formal Relationships with Resettlement Agencies.

The administration's approach to refugees is only modestly better than its treatment of family ties. The Supreme Court's ruling states that "Section 6(a) [suspending the refugee program] 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." In other words, the same standards apply to refugees as to would-be entrants covered by the travel ban targeting the six nations. The latter are allowed to enter so long as they have a "formal" relationship with some US organization, such as an offer of employment, acceptance to an academic program at a university, an invitation to give a lecture, and the like. Any such relationship is sufficient so long as it is "formal, documented, and formed in the ordinary course," and not as an attempt to circumvent the order. Yet the administration's guidance on refugees (obtained by the state of Hawaii, one of the plaintiffs in the travel ban litigation) apparently bans entry by those who have received "formal assurances" from US refugee resettlement organizations who have agreed to sponsor them.

As prominent immigration law scholar Alex Aleinikoff explains, nearly all migrants who enter the US as refugees do so by means of formal arrangements with private refugee resettlement agencies, who officially agree to assist them in various ways. Such arrangements are undeniably, "formal," "documented" and part of the "normal course" of business for refugee resettlement.

Admittedly, the Supreme Court indicated that "a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion." But this example was given as an illustration of how the relationship with a US entity must not be one established "simply to avoid §2(c) [of the order]. The relationships between refugees and resettlement organizations are not formed "simply" for that purpose, as proven by the fact that they were standard practice long before Trump issued his order in the first place. Moreover, as Aleinikoff emphasizes, this part of the Court's opinion refers only to Section 2(c) of the order—the six nation travel ban—and does not apply to Section 6, which deals with refugee admissions.

The state of Hawaii has filed an emergency motion asking the district court to clarify the scope of its injunction, and specifically address the family and refugee issues. Hopefully, the judiciary will put a stop to the Administration's attempts to circumvent the Supreme Court's ruling.

Note: This could turn out to be a fast-developing story. By the time you read this post, it is possible there will have been additional changes in the administration's policy. I will try to update when time permits.

UPDATE: The Department of Homeland Security website states that "[a] refugee who has a relationship with an entity in the United States that is formal, documented, and formed in the ordinary course will be considered to have a credible claim to a bona fide relationship with that entity upon presentation of sufficient documentation or other verifiable information supporting that claim." But this merely restates the language of the Supreme Court decision, and does not indicate that DHS interprets this standard as covering refugees who have have relationships with refugee resettlement organizations. As noted above, documents obtained by Hawaii indicate that the administration intends to bar refugees who fit that description.

The only refugees that DHS site specifically states are exempt from the travel ban are those who fit the administration's definition of people with sufficiently close family ties, and those already "formally scheduled for transit" as of yesterday.