By Andrew R. Arthur on July 14, 2017

In my June 29, 2017, post, I noted that the Trump administration was preparing to begin implementation, in accordance with limitations in a June 26, 2017 Supreme Court decision, of Executive Order 13780 (captioned “Protecting the Nation from Foreign Terrorist Entry into the United States” (EO-2) and popularly known as the “Travel Ban“).

A subsequent July 3 post detailed how the State of Hawaii and Ismail Elshikh, the plaintiffs in a Ninth Circuit case challenging EO-2 had (inevitably) filed an Emergency Motion to Clarify Scope of Preliminary Injunction before the District Court Judge for the District of Hawaii who had issued the initial order that circuit court reviewed.

In that motion, the plaintiffs asked the District Court to “clarify”:

(1) [T]hat the injunction bars the Government from enforcing the Executive Order against fiancés, grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; (2) that refugees with a bona fide relationship with a person or entity in the United States are covered by the injunction; and (3) that the Government may not apply a presumption that aliens lack a “bona fide relationship with a person or entity in the United States.”

In his concurrence in part and dissent in part from the Supreme Court’s decision, Justice Thomas (joined by Justice Alito and Justice Gorsuch) predicted such legal action, stating that he had reasonably feared that the Court’s decision would be “unworkable”, reflecting a “compromise” that would “invite a flood of litigation”.

Not to be redundant, but by way of background, Section 2(c) of EO-2 suspended the entry of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days from the effective date of that order, subject to certain “limitations … and exceptions”, including for lawful permanent residents, dual nationals, aliens granted asylum, and refugees already admitted. These countries were so identified, the order explained, because conditions in each (as detailed in section 1(e) of EO-2) “demonstrate” that nationals of those countries “present heightened risks to the security of the United States.” Section 3 of EO-2 also provided waivers of section 2 on a “case-by-case basis” for affected foreign nationals.

Section 6(a) of EO-2 suspended decisions on refugee applications for 120 days, and section 6(b) of that order capped the number of refugees to be admitted in FY 2017 at 50,000. Section 6(c) of that order made “case-by-case” waivers of the suspension in section 6(a) available.

The Supreme Court granted the government’s requests to stay two circuit court orders that enjoined those provisions, “to the extent the injunctions prevent[ed] enforcement of [section 2(c) of EO-2] with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” It left the “injunctions entered by the lower courts in place” however “with respect to respondents and those similarly situated.”

The Court explained that under its order, section 2(c) of EO-2:

[M]ay 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. All other foreign nationals are subject to the provisions of EO–2.

The facts of these cases illustrate the sort of relationship that qualifies. 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 … clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.

The Court warned, however, that “someone who enters into a relationship simply to avoid [section 2(c) of EO-2]” would not qualify for the injunction.

With respect to a Ninth Circuit injunction on enforcement of the suspension of refugee admissions under section 6(a) of EO-2, and the 50,000-refugee cap in section 6(b) of that order, the Court held that the “equitable balance” it crafted with respect to section 2(c) of EO-2 would apply to those sections, as well:

An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.

Based on this, the Court concluded that:

Section 6(a) 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. Nor may [section 6(b) of EO-2]; that is, such a person may not be excluded pursuant to [section 6(b) of EO-2], even if the 50,000-person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.

In an order filed on July 13, 2017, United States District Judge Derrick K. Watson of the United States District Court for the District of Hawaii enjoined the Departments of Homeland Security and State from:

1. Applying section 2(c), 6(a) and 6(b) of Executive Order 13,780 to exclude grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States

2. Applying Section 6(a) and 6(b) of Executive Order 13,780 to exclude refugees who: (i) have a formal assurance from an agency within the United States that the agency will provide, or ensure the provision of, reception and placement services to that refugee; or (ii) are in the U.S. Refugee Admissions Program through the Lautenberg Program.

In essence, if there is a relationship that has a definition in the English language that is defined by law, Judge Watson wants to enjoin the aforementioned sections of EO-2 from applying to it.

Part of the problem with the Supreme Court’s decision is the fact that it included mothers-in-law as having a “close familial relationship” because Dr. Elshikh’s mother-in-law was the relative that he sought to bring to the United States. As Judge Watson states in his latest order:

Defendants point to nothing in the Supreme Court’s order that supports their truncated reading. In fact, the Supreme Court specifically included a mother-in-law within its definition of “close family” despite the exclusion of mothers-in-law from the statutes relied upon by the Government in crafting its guidance.

Mother-in-law is an odd relationship, because it is one of marriage, not blood. But, while many bad jokes can be made about this relationship, it is actually a quite significant one. My mother-in-law is the mother and confidant of my wife, a support to me, and the grandmother of my child. Mine lived with me for several years, and was a key member of my household. More importantly, in my own city of Baltimore, mothers- (and fathers-) in-law often assume the responsibility of one or most parents in the family home when it comes to the raising of grandchildren; in fact, the Baltimore City Health Department even has a whole page to help grandparents raising children.

Oddly enough, Judge Watson attempts to parse out only the relationship between Dr. Elshikh and his mother-in-law exclusive of her relationship to anyone else in the household, stating:

The Supreme Court was clear that EO-2 may not be enforced against Dr. Elshikh’s mother-in-law, not because she is merely the mother of his wife, but because she “clearly has such a [close familial] relationship” with Dr. Elshikh himself.

Respectfully, I believe that this is an overly technical reading of the Supreme Court’s order, and one that ignores the dynamics of traditional family home and the legal relationship created by matrimony.

If mothers-in-law, why not (based on the statements above) grandparents? Well, for one thing, most grandparents are also parents or parents-in-law of a person in the United States (and are therefore already covered by the Supreme Court’s order) and are not generally otherwise addressed in immigration law. For example, they are not considered “immediate relatives” for visa purposes, and there is no family-sponsored preference for grandparents. To the degree that grandparents are needed to raise grandchildren (as in Baltimore), waivers to section 2(c) of EO-2 are available in section 3(c) of EO-2, which states, in pertinent part:

Waivers. Notwithstanding the suspension of entry pursuant to section 2 of this order, a consular officer, or, as appropriate, the Commissioner, U.S. Customs and Border Protection (CBP), or the Commissioner’s delegee, may, in the consular officer’s or the CBP official’s discretion, decide on a case-by-case basis to authorize the issuance of a visa to, or to permit the entry of, a foreign national for whom entry is otherwise suspended if the foreign national has demonstrated to the officer’s satisfaction that denying entry during the suspension period would cause undue hardship, and that his or her entry would not pose a threat to national security and would be in the national interest. (Emphasis added.)

Absent such hardship, again, the suspension in section 2(c) of EO-2 is simply temporary, not permanent.

Most importantly, however, there are cousins. Judge Watson’s order does not limit this relationship to first or even second cousins. Most people fail to realize how many relatives we have, but a New York Times article from 2014 explains. The author states: “My family tree spreads far and wide. It is not even a tree, really. More like an Amazonian forest. At last count, it was up to nearly 75 million family members.” Or, as Huffpost explains:

[I]f you go back far enough, we’re all cousins. Do the math. You have two parents, four grandparents, eight great-grandparents, and so forth. By the time you’re back ten generations, you’ve got 1,024 ancestors. Twenty generations puts you over the million mark, and somewhere around thirty generations, your ancestors would seem to outnumber the world’s entire population at the time.

In fact, I have (or had, I don’t keep up) two Facebook friends who are cousins I have never met who live in Swabia. I have looked at their pictures, but had to rely on Google translate to understand what they were saying (my German is not good, and their English is non-existent). But, if they lived in Mogadishu, they could apparently come to the United States thanks to me and Mark Zuckerberg.

As I stated in my July 3 post:

The Supreme Court’s compromise decision was too vague, and left too much unsaid. While its analysis was quite thorough, rather than listing the qualifying “close familial relationships” that would exclude a foreign national from the coverage of section 2(c) of EO-2, the Court instead provided an unhelpful “illustrat[ion]”: wives and mothers-in-law. Worse, refugee processing is a fairly uniformly applied system, but instead of explaining where in the system a “bona-fide relationship” must be formed to exempt a foreign national from sections 6(a) and (b) of EO-2, or, again list the necessary relationships for such exemption, the Court says nothing.

Judge Watson’s order renders the Supreme Court’s decision all but a dead letter.

This article is republished with permission from our friends at the Center for Immigration Studies.