U.S. Supreme Court
U.S. Supreme Court (Michael A. Scarcella/ ALM)

The Trump administration may not view grandparents, aunts, uncles and others as having close enough family relationships in the United States to be excluded from the government’s travel ban, but the U.S. Supreme Court on at least two occasions, in different contexts, has recognized the importance of those family bonds.

The justices soon may be asked to weigh just how important those relationships are in the latest dispute over President Donald Trump’s executive order banning some travel into the United States.

The order restricting travel to the United States by foreign nationals from six predominantly Muslim countries for 90 days and refugees for 120 days took effect June 29, three days after the U.S. Supreme Court partially lifted lower court injunctions that had blocked the order. The Trump administration then issued guidance on who was affected by the Supreme Court’s action.

Government officials said the travel ban would apply to grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-law and sisters-in-law, and fiances of persons in the United States. (The administration subsequently excluded fiances from the ban.)

Neal Katyal.

Challengers to the executive order immediately returned to the Hawaii federal trial judge who originally issued an injunction against the ban. They asked the judge, Derrick Watson, to clarify the scope of his injunction in light of the Supreme Court’s action.

Represented by Hogan Lovells partner Neal Katyal, they argue the administration has interpreted too narrowly the high court’s order. The justices said those immigrants excluded from the travel ban are foreign nationals with “close familial relationships” to individuals in the United States. The court also said the travel ban would not affect those whose relationships to entities in this country are “formal, documented and formed in the ordinary course, rather than for the purpose of evading” the executive order.

“In this case, the government has ordered consulates to exclude aliens who have some of the most elemental relationships known to human society, from grandparents to nephews,” Katyal wrote in court papers filed on June 29.

The U.S. Department of Justice subsequently defended its guidance on who would be denied entry into the United States. The government said it would ask the Supreme Court for clarification if the trial court rules for the challengers. A ruling could come as soon as this week.

What the Supreme Court Said About Close Familial Relationships

Nearly two decades ago in one of the high court’s infrequent forays into family law, the justices considered Washington state’s child visitation law. Grandparents had petitioned for visitation rights under the state law, but the parents of their grandchildren objected. The grandparents lost in the Supreme Court, which said the state visitation law was so broad that it interfered with the rights of parents to raise their children.

But very early in her opinion for the court in Troxel v. Granville, Justice Sandra Day O’Connor addressed the “changing realities” of the American family.

“The demographic changes of the past century make it difficult to speak of an average American family,” she wrote. “The composition of families varies greatly from household to household. While many children may have two married parents and grandparents who visit regularly, many other children are raised in single-parent households.”

O’Connor continued: “Understandably, in these single-parent households, persons outside the nuclear family are called upon with increasing frequency to assist in the everyday tasks of child rearing. In many cases, grandparents play an important role. For example, in 1998, approximately 4 million children–or 5.6 percent of all children under age 18—lived in the household of their grandparents.”

Justice Clarence Thomas was raised by his grandparents, and President Barack Obama was raised in part by his.

That demographic change has been recognized internationally. In a January article in the International Journal of Aging and Human Development, the authors wrote: “Globally, it is common for grandparents to serve as surrogate parents to their grandchildren, often in response to family crises and other challenges such as poverty, disease epidemics and migration.”

Even 40 years ago, the justices recognized what was happening to the traditional nuclear family when it took up a challenge to an Ohio zoning ordinance that strictly defined “family.” The definition excluded a grandmother from living with her son and two grandsons who were first cousins. The high court in Moore v. City of East Cleveland described the nuclear family as an “arbitrary boundary.” The grandmother prevailed.

“Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family,” wrote Justice Lewis Powell Jr. “The tradition of uncles, aunts, cousins and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition.” Powell continued: “Even if conditions of modern society have brought about a decline in extended family households, they have not erased the accumulated wisdom of civilization, gained over the centuries and honored throughout our history, that supports a larger conception of the family.”

Katyal relied in part on the Moore decision to challenge the Trump administration’s guidance on the scope of the travel ban. All of the relationships the government has not exempted from the travel ban are “close familial relationships” within the meaning of the high court’s order, he wrote.

“A brother-in-law, for instance, is the brother of a U.S. person’s spouse; there is no reason in logic or law why that person is a more distant family member than the mother of a person’s spouse,” Katyal argued. “Likewise, it is inconceivable that a person would claim that he suffers a lesser burden if his grandchildren are excluded from the country than if his mother-in-law is.”

The Justice Department, however, in making its counter-argument, said the government’s implementation of the Supreme Court’s “close familial relationship” test reflects policy in the federal Immigration and Nationality Act.

That law, said acting U.S. Solicitor General Jeffrey Wall, “categorically privileges certain family relationships over others.” But the law does not grant any immigration benefit for grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins of persons in the United States, he wrote.

“Plaintiffs try to sweep in a host of extended family relationships that Congress in the INA did not privilege, but provide no explanation to justify overriding the INA as the best reference for line-drawing,” Wall said. Instead, he said, the challengers point to Moore—”a decision addressing a housing ordinance.”

The two sides also fight over the administration’s reading of the high court’s test for the ban’s application to refugees. Katyal argued that a refugee with a “formal assurance,” a document by a resettlement agency guaranteeing a local sponsor and a place to live, is sufficient for exclusion from executive order. The government said the formal assurance is an indirect link between the refugee and the agency.

If the Hawaii judge grants any relief to the challengers, the case will head back to the Supreme Court. The Trump administration asked Watson, the judge, to stay any relief pending its “immediate request” to the Supreme Court for clarification of its June 26 order that revived part of the ban.

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