A three-judge panel at the U.S Court of Appeals for the Ninth Circuit appeared skeptical Monday of the government’s position that a June U.S. Supreme Court ruling did not exclude grandparents and other family members from President Donald Trump’s travel ban executive order.
The panel of three judges — the same three who ruled in June that Trump did not have the authority to issue the travel ban order in the first place — repeatedly peppered U.S. Department of Justice lawyer Hashim Mooppan with questions about why the government did not consider, for example, the relationship between a grandparent and grandchild to be a “close familial relationship.” The Supreme Court’s order stayed lower courts’ injunctions against the travel ban, except with respect to those with such relationships to people in the United States or refugees with a “bona fide relationship with a person or entity in the United States.”
The government interpreted “close familial relationship[s]” to include parents and parents-in-law, spouses, children, siblings, engaged couples and step-relatives. Following the order, the state of Hawaii, represented by Hogan Lovells partner Neal Katyal and associate Colleen Roh Sinzdak, asked U.S. District Judge Derrick Watson of the District of Hawaii to clarify it. He declined, noting he did not have the authority to clarify a Supreme Court order. Later, however, when the challenge was posed differently, Watson agreed and expanded the exemption to include grandparents, grandchildren, cousins, nieces and nephews, aunts and uncles and brothers- and sisters-in-law.
Watson also ruled that agreements the U.S. government maintains with refugee resettlement agencies to accommodate certain refugees constitute a “bona fide relationship” between the refugee and an entity in the United States.
The government swiftly appealed that ruling. Monday, Judges Ronald Gould, Richard Paez and Michael Daly Hawkins of the U.S. Court of Appeals for the Ninth Circuit heard arguments in the case, which were live streamed. Here are three key questions judges had for the lawyers in the hearing:
“What universe does that come from?”
Gould’s first question for Mooppan was how the government could possibly take the position that a grandmother, grandfather, aunt or uncle of a child in the United States would not constitute a “close familial relationship.”
“Like, what universe does that come from?” Gould asked. The question gets to the heart of disagreement between Hawaii and the government. Mooppan explained that the government’s position was not that such relationships aren’t close in general, but that in this case, the government needed to consider the “legal context” at hand.
Mooppan argued that the question should be what the Supreme Court meant when it adopted the order, not what a close familial relationship is generally or in other legal contexts. He said the need for an administrable, and not arbitrary, definition justified a narrower reading of “close familial relationship[s].”
“Isn’t this scheme, doesn’t it demonstrate a formal, well-documented relationship?”
This time it was Paez who sparred with Mooppan. Paez asked about why the arrangements between the government and resettlement organizations, called “assurances,” in which the organizations agree to help resettle refugees, don’t qualify as a “bona fide” relationship with an entity under the Supreme Court’s order. The order said that entity relationships had to be “formal, documented and formed in the ordinary course” to qualify as bona fide.
Mooppan said an assurance would be a documented relationship between the U.S. government and the resettlement agencies, not the agencies and refugee.
“It is formal and documented but it is a relationship between the resettlement agency and the government,” Mooppan said.
“For the benefit of a particular refugee,” Paez interjected.
“For the benefit, but not ‘with,’” Mooppan replied. “The standard is whether there’s a relationship with the refugee.”
“Isn’t there a basic difference between individuals seeking to enter as an immigrant and those as a refugee?”
After Sinzdak took the podium, Hawkins had this question for her. He pointed out that while those seeking an immigrant visa have statutory rights under the Immigration and Nationality Act, those seeking refugee status do not share the same rights. He went on to ask whether the government could legally stop the refugee process all together.
His question marked an important difference between laws that apply to immigrants and laws that apply to refugees. There are two issues at stake in this case — the relationships between visa-seekers and those in the United States, and between refugees and those in the United States. The court doesn’t necessarily have to rule the same way on both, though Hawaii maintains that both people and entities in the United States suffer some sort of injury when they’re separated from immigrants or refugees with whom they have relationships.
“I’d emphasize that … while the Supreme Court did not dwell on, perhaps, these differences in the laws governing refugee admissions and immigrant and nonimmigrant visas, they certainly could have,” Sinzdak replied. “But what they looked as the salient feature was who will experience concrete hardship from the application of the executive order. And when you look at that particular question, it’s clear that resettlement agencies will experience concrete hardship.”