U.S. Court of Appeals for the Ninth Circuit, where a three-judge panel heard arguments on the halting of the immigration ban. (Jason Doiy / The Recorder)
The U.S. Court of Appeals for the Ninth Circuit ruled Thursday that family members of those in the United States, including grandparents and children-in-law, are exempt from President Donald Trump’s travel ban executive order.
The court on Thursday disagreed with the government’s argument that, under a June order from the U.S. Supreme Court, only parents and parents-in-law, spouses, children, siblings, engaged couples and step-relatives were exempt. The high court’s order stayed lower courts’ injunctions against the ban except with respect to people with “close familial relationship[s]” in the United States.
The Ninth Circuit’s opinion said the government “unreasonably interpret[ed] the Supreme Court’s reference to ‘close familial relationship[s].’”
“It is hard to see how a grandparent, grandchild, aunt, uncle, niece, nephew, sibling-in-law, or cousin can be considered to have no bona fide relationship with their relative in the United States,” the decision said.
Also at issue was whether “formal assurances” by some refugee resettlement agencies, in which they agree to work with certain refugees when they arrive in the United States, counts as a bona fide relationship. The court again sided with Hawaii, allowing those refugees to be exempt from the ban.
“Although the assurance is technically between the agency and the government, the government’s intermediary function does not diminish the bona fide relationship between the resettlement agency and the specific refugee covered by the assurance,” the decision said.
A Justice Department spokeswoman said the government will appeal the ruling to the Supreme Court.
“The Supreme Court has stepped in to correct these lower courts before, and we will now return to the Supreme Court to vindicate the executive branch’s duty to protect the nation,” she said in an email.
The Ninth Circuit decision said the court will enter its mandate solidifying the decision in five days, instead of the typical 52, due to the dire situation facing most refugees.
“Refugees’ lives remain in vulnerable limbo during the pendency of the Supreme Court’s stay,” the decision said. “Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be reinitiated. Even short delays may prolong a refugee’s admittance.”
The judges, Ronald Gould, Richard Paez and Michael Daly Hawkins, are the same three who ruled in June that Trump did not have the authority to issue the travel ban order in the first place.
Hawaii was represented by a team of lawyers from Hogan Lovells, led by partner Neal Katyal and argued by associate Colleen Roh Sinzdak. Hashim M. Mooppan represented the government.
Sinzdak said she was “beyond thrilled” with the ruling, and that the court’s reasoning was particularly significant.
“I think the fact that [the judges] realized that the refugee issue was both extremely important, in terms of people’s lives and the investment of Americans …That part really stuck out because, I think after the Supreme Court’s stay ruling, people had sort of moved on,” Sinzdak said. “So I was really glad to see that they had understood how important that piece is.”
The government had argued certain provisions in the Immigration and Nationality Act indicated that in the immigration context, a “close-familial relationship” only applied to parents and parents-in-law, spouses, children, siblings, engaged couples and step-relatives. The decision, however, said there was “no support for the proposition” that the Supreme Court’s order was informed by the INA, and that even so, the government “cherry-picked” provisions from the INA to fit its argument.
“The government’s decision to rely on the cited specific provisions of the INA is troubling because other provisions of the INA (and other immigration laws) offer broader definitions,” the court wrote.
With respect to refugees, the government contended that “formal assurances” could not constitute a “bona fide relationship” with the United States because the assurances are agreements between the State Department and refugee resettlement agencies. The high court said a “bona fide relationship” is one that is “formal, documented, and formed in the ordinary course rather than to evade the executive order.”
The decision noted the various security screenings and legal hurdles refugees must clear before a formal assurance can be issued, and the money and effort resettlement agencies expend to serve refugees.
“This advance preparation and expenditure of resources supports the district court’s determination that a bona fide relationship with the refugee exists,” the decision said.
Though the Supreme Court will hear oral arguments on the general legality of the travel ban in October, Thursday’s Ninth Circuit decision is the result of an appeal by the state of Hawaii. The state asked U.S. District Judge Derrick Watson of the District of Hawaii to clarify the Supreme Court’s order.
He declined at first, on the grounds that he didn’t have the authority to clarify a Supreme Court order. Later, 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.