Employment Law Daily For travel ban, Administration’s definition of ‘close familial relationship’ still inoperative
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Friday, July 21, 2017

For travel ban, Administration’s definition of ‘close familial relationship’ still inoperative

By Pamela Wolf, J.D.

The Supreme Court on July 19 denied the Trump Administration’s request for clarification of the High Court’s June 26 stay of lower court preliminary injunctions to the extent they barred enforcement of Sections (2)(c), 6(a), and 6(b) of Trump’s revised travel ban to foreign nationals who lack any “bona fide relationship with a person or entity in the United States.” The revised travel ban (Executive Order 13,780) stopped the issuance of new visas for individuals from the Muslim-majority countries of Iran, Libya, Somalia, Sudan, Syria, and Yemen. The federal government and the State of Hawaii had different ideas about what the Supreme Court meant when it ruled that the preliminary injunctions would remain in effect as to individuals with a “close familial relationship” to a person in the United States.

Enforcing its own injunction, the Hawaii district court, siding with the state, concluded that a “close family relationship” does not exclude, as federal guidance contends, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States—that definition was the “antithesis of common sense” (See Court rejects Trump Administration’s definition of ‘close familial relationship’ for travel ban purposes, July 14, 2017). The federal guidance had asserted that “close familial relationship” included only parents (including parents-in-law), spouses, fiances, children, adult sons or daughters, sons-in-law, daughters-in-law, and siblings (whole or half or step relationships).

After the adverse lower court decision modifying its own preliminary injunction, the Trump Administration turned back to the Supreme Court to clarify the question of which foreign nationals may be excluded from entry to the United States based on the Court’s June 26 order. Although the federal government did not get a stay of the modified preliminary injunction as to the definition of “close familial relationship,” the High Court did stay the modified preliminary injunction with respect to refugees covered by a formal assurance, pending resolution of the Trump Administration’s appeal to the Ninth Circuit. Justices Thomas, Alito, and Gorsuch would have stayed the district court order in entirety.

Hawaii Attorney General Doug Chin quickly responded to this latest round in the battle over the revised travel ban. “This confirms we were right to say that the Trump Administration over-reached in trying to unilaterally keep families apart from each other, in violation of the Supreme Court’s prior ruling,” he said in a statement.

At the time of press, the Trump Administration had not yet issued a statement.

The case, Trump v. State of Hawaii, is No. 16-1540 (16A1191).

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