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Close Family Relatives and Refugees May Enter United States, Federal Appeals Court Rules

This afternoon the Ninth Circuit Court of Appeals affirmed the July 13, 2017 Hawaii district court order in the travel ban case, Hawaii v. Trump, allowing the entry to the United States of close family members and refugees with formal assurances from a United States resettlement agency.

Click tor read full opinion

On June 26, 2017, the United States Supreme Court issued an order in this case that the travel ban could 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, including those with a “close familial relationship.” The same standard applies with respect to refugee admissions. The federal government subsequently issued guidance that such “close familial relationships” did not include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of people currently living in the United States.

Attorney General Chin said, “Today’s decision by the 9th Circuit keeps families together. It gives vetted refugees a second chance. The Trump administration keeps taking actions with no legal basis. We will keep fighting back.”

The Ninth Circuit’s order states in part:

[I]t is clear that the Supreme Court’s use of “close familial relationship[s]” meant that the Court wanted to exclude individuals who have no connection with the United States or have remote familial relationships that would not qualify as “bona fide.” The Government does not meaningfully argue how grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States can be considered to have “no connection” to or “lack any bona fide relationship” with persons in the United States. Nor does the Government explain how its proposed scope of exclusion would avoid the infliction of concrete hardships on such individuals’ family members in the United States. Stated simply, the Government does not offer a persuasive explanation for why a mother-in-law is clearly a bona fide relationship, in the Supreme Court’s prior reasoning, but a grandparent, grandchild, aunt, uncle, niece, nephew, or cousin is not.

*** The Government offers no explanation as to why it relied on its selected provisions of the INA, while ignoring other provisions of the same statute as well as other immigration laws. The INA was implemented with “the underlying intention of . . . preservation of the family unit.” The Government’s artificially narrow interpretation of close familial relationships directly contradicts this intention.

*** Resettlement agencies will face concrete harms and burdens if refugees with formal assurances are not admitted. In the same way that the Court considered the harms of the U.S. citizen who wants to be reunited with his mother-in-law and the permanent resident who wants to be reunited with his wife, the employer that hired an employee, the university that admitted a student, and the American audience that invited a lecturer, the district court correctly considered the resettlement agency that has given a formal assurance for specific refugees.

*** Refugees’ lives remain in vulnerable limbo during the pendency of the Supreme Court’s stay. Refugees have only a narrow window of time to complete their travel, as certain security and medical checks expire and must then be re-initiated. Even short delays may prolong a refugee’s admittance.

A copy of the Ninth Circuit’s decision is attached.

Oral arguments on the merits of the travel ban appeals before the U.S. Supreme Court are scheduled to occur on October 10, 2017 in Washington, D.C.

Federal Court Rules in Favor of Travel Ban Plaintiffs

Yesterday, Hawaii federal district Judge Derrick K. Watson issued an order, which largely grants the State of Hawaii and Dr. Ismail Elshikh’s motion to enforce, or in the alternative, to modify the preliminary injunction, filed last Friday in Hawaii v. Trump.

Click to view order

On June 26, 2017, the United States Supreme Court issued an order in this case that the travel ban could 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, including those with a “close familial relationship.” The same standard applies with respect to refugee admissions. The federal government subsequently issued guidance that such “close familial relationships” did not include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of people currently living in the United States.

Judge Watson’s order notes that “context matters” and:

“[W]hen appropriately considered in the context of the June 26 order, the Government’s narrowly defined list finds no support in the careful language of the Supreme Court or even in the immigration statutes on which the Government relies.

[T]he Government’s utilization of the specific, family-based visa provisions of the [Immigration and Nationality Act] … constitutes cherry-picking and resulted in a predetermined and unduly restrictive reading of ‘close familial relationship.’ Other, equally relevant federal immigration statutes define a close family in a much broader manner.

In sum, the Government’s definition of ‘close familial relationship’ is not only not compelled by the Supreme Court’s June 26 decision, but contradicts it. Equally problematic, the Government’s definition represents the antithesis of common sense. Common sense, for instance, dictates that close family members be defined to include grandparents. Indeed, grandparents are the epitome of close family members. The Government’s definition excludes them. That simply cannot be.”

Attorney General Chin said, “The federal court today makes clear that the U.S. Government may not ignore the scope of the partial travel ban as it sees fit. Family members have been separated and real people have suffered enough. Courts have found that this Executive Order has no basis in stopping terrorism and is just a pretext for illegal and unconstitutional discrimination. We will continue preparing for arguments before the U.S. Supreme Court in October.”

Judge Watson’s order also notes that contrary to the Trump Administration’s arguments, “[n]othing in the Supreme Court’s decision requires a refugee to enter into a contract with a United States entity in order to demonstrate the type of formal relationship necessary to avoid the effects of [the Executive Order]. An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones … [b]ona fide does not get any more bona fide than that.”

A copy of Judge Watson’s order is attached.

Travel Ban Case Update: Hawaii Files Answering Brief with the Ninth Circuit Court Appeals

Last Friday afternoon the State of Hawaii filed its answering brief with the Ninth Circuit Court of Appeals in Hawaii v. Trump.

Click to read

On March 15, 2017, Judge Derrick Watson issued a 43-page opinion temporarily enjoining the federal government nationwide from enforcing or implementing Sections 2 and 6 of a second Executive Order issued by President Trump (the travel ban).

The travel ban would have restricted immigration from Iran, Syria, Somalia, Sudan, Libya, and Yemen, and also temporarily suspended refugee admissions. The travel ban had been scheduled to become effective on March 16, 2017.

The temporary restraining order blocking the travel ban was converted to a preliminary injunction on March 29, 2017. On April 7, 2017, the Department of Justice filed its opening brief seeking to overturn that preliminary injunction.

Hawaii’s answering brief states in part:

“The Executive Order flouts [the] protections [in the Constitution]. While the Constitution commits the immigration power to Congress, the President claims it for his own, recognizing no statutory limits on his powers of exclusion. And while the Bill of Rights guarantees Due Process and forbids the establishment of religion, the President seeks to enact a thinly veiled Muslim ban, shorn of procedural protections and premised on the belief that those who practice Islam are a danger to our country. The Constitution is not so easily cast aside.”

The Trump Administration is expected to file a reply brief on April 28, 2017. The appeal is scheduled to be heard before a panel of the Ninth Circuit Court of Appeals on May 15, 2017 at 9:30 a.m. in Seattle, Washington.

Trump Travel Ban Case Update: Court Grants Conversion of Temporary Restraining Order to Preliminary Injunction

Attorney General Doug Chin

Attorney General Doug Chin issued the following statement today in response to the ruling by federal judge Derrick K. Watson granting the state’s motion to convert the temporary restraining order enjoining the President’s travel ban to a preliminary injunction:

“This is an important affirmation of the values of religious freedom enshrined in our Constitution’s First Amendment. With a preliminary injunction in place, people in Hawaii with family in the six affected Muslim-majority countries – as well as Hawaii students, travelers, and refugees across the world – face less uncertainty. While we understand that the President may appeal, we believe the court’s well-reasoned decision will be affirmed.”

Unlike a temporary restraining order, a preliminary injunction generally has no set expiration date.

Trump Travel Ban Update: Hawaii Seeks Conversion of Temporary Restraining Order to Preliminary Injunction

Hawaii Attorney General Doug Chin announced today that the state of Hawaii has moved to convert the temporary restraining order issued last week by Hawaii federal judge Derrick K. Watson in the travel ban case into a preliminary injunction.

Attorney General Doug Chin

On March 15, 2017, Judge Watson issued a 43-page opinion enjoining the federal government nationwide from enforcing or implementing Sections 2 and 6 of a second Executive Order issued by President Trump. That Executive Order would have restricted immigration from Iran, Syria, Somalia, Sudan, Libya, and Yemen, and also temporarily suspended refugee admissions. The second Executive Order had been scheduled to become effective on March 16, 2017.

Attorney General Chin said, “Protecting national security and the safety of our state is critically important, but executive orders must not discriminate against people based on national origin or religion. President Trump during his campaign called for a Muslim ban. His comments in the last week indicate he still supports that policy.”

In today’s filings, Hawaii quotes from the following statement made by the President at a rally in Nashville, Tennessee on the evening of March 15 after the federal court had issued its temporary restraining order:

“The order [Judge Watson] blocked was a watered down version of the first order that was also blocked by another judge and should have never been blocked to start with . . . . Remember this. I wasn’t thrilled, but the lawyers all said, oh, let’s tailor it. This is a watered down version of the first one. This is a watered down version. And let me tell you something, I think we ought to go back to the first one and go all the way, which is what I wanted to do in the first place.”

Today’s filings also describe a television interview later that night during which President Trump stated that it was “very hard” to assimilate Muslims into Western culture.

Under federal court rules, a temporary restraining order expires 14 days after entry, unless the court extends it. In contrast, a preliminary injunction will last as long as directed by the court.

A hearing on today’s motion is currently scheduled before Judge Watson on March 29, 2017 at 9:30 a.m. The Court has advised that the hearing date and time may be changed or vacated upon review of the written briefs. The parties have also stipulated that Judge Watson’s nationwide order of March 15, 2017 shall remain in place until such time as the Court rules on whether the TRO should be converted to a preliminary injunction or until otherwise ordered by the Court.

Copies of the motion to convert the temporary restraining order to a preliminary injunction and the memorandum in support of the motion are attached.

Rep. Tulsi Gabbard Statement on Federal Stay on Travel Ban

Rep. Tulsi Gabbard (HI-02) released the statement below after U.S. District Court Judge Derrick Watson in Honolulu issued a nationwide stay temporarily preventing the Trump Administration’s travel ban from going into effect:

“Hawaiʻi is a place where people with different ideas, backgrounds, religions, and ethnicities feel welcomed and respected. It’s only right that our Attorney General Doug Chin represent those values in working to stop this blanket travel ban from going into effect. This travel ban is bad policy, plain and simple.”