A federal appeals court upheld a lower court's ruling that grandparents and other family members, as well as would-be refugees who have received formal assurances of support from resettlement agencies, are not subject to President Trump's travel and refugee bans.
The appeals court ruled that US District Judge Derrick Watson, in exempting those groups in question, "carefully and correctly balanced the hardships and the equitable considerations as directed by the Supreme Court" in a June order over Trump's executive order.
The Justice Department will be appealing the ruling, a spokesperson announced Thursday evening.
"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," Justice Department spokesperson Nicole Navas said in a statement.
Hawaii Attorney General Douglas Chin, whose state brought the lawsuit before the Ninth Circuit challenging the executive order, said in a statement that the decision "keeps families together" and "gives vetted refugees a second chance."
"The Trump administration keeps taking actions with no legal basis," Chin said. "We will keep fighting back."
After courts had put the second travel and refugee bans on hold after Trump signed it in March, the Supreme Court allowed the bans to go into effect in part in late June. While it agreed to consider the legality and constitutionality of the bans in the fall, the justices allowed the bans to go into effect as to those with "no connection" to the US.
Specifically, the Supreme Court barred enforcement of the 90-day travel ban from six Muslim-majority countries or the 120-day halt to the US refugee program against those with a “credible claim of a bona fide relationship” to a US person or entity.
The side-argument since — which was before the Ninth Circuit — was over what constitutes such a bona fide relationship.
When the federal government announced how it would be interpreting the ruling, Hawaii went back to court, eventually asking Watson to modify his injunction in the case to rule, effectively, that the Trump administration had interpreted the Supreme Court's "bona fide relationship" language too narrowly. He did so as to the two points on appeal at the Ninth Circuit — regarding the definition of family and whether resettlement agency assurances count as a sufficient connection.
The Justice Department has argued that the "close familial relationship" referenced by the Supreme Court as being the type of personal exemption only included "a parent (including parent-in-law), spouse, fiancé(e), child, adult son or daughter, son-in-law, daughter-in-law, sibling (whether whole or half), and step relationships." Lawyers for Hawaii, which has challenged the executive orders, have argued that a more broad definition of family was intended — a point they say is accentuated by the fact that the Supreme Court's June order said that an American's mother-in-law "clearly" had a sufficient connection to be exempted from the ban.
The federal government also has argued that a resettlement agency assurances should not count as a sufficient connection because they are indirect — as they are made between the agency and the federal government — and, they say, such an interpretation would essentially render the Supreme Court's June order "meaningless" because it would allow so many refugees to continue traveling under the ban. The challengers, however, have argued that such arguments invent language not in the Supreme Court's order.
The Justice Department initially asked the Supreme Court to resolve the issue by clarifying its June order, but the court declined to do so. Instead, it put the resettlement agency portion of the order on hold pending the appeal to the Ninth Circuit. It took no action on the family portion of Watson's ruling — meaning that has been the policy since his ruling.
The Justice Department nonetheless appealed both portions of Watson's ruling, and the Ninth Circuit, on both points, sided with his ruling.
"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," the court held in an unsigned opinion.
Regarding the resettlement agency question, the court did signal that it believed this was a closer question.
"We cannot say that the district court clearly erred in its factual findings or ultimately abused its discretion in holding that the written assurance an agency submits, obligating the agency to provide core services for the specific refugee(s) listed on the assurance form, meets the requirements set out by the Court," the court held. "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 court held that its ruling does not go into effect for five days — meaning the resettlement agency portion won't go into effect just yet, given the Supreme Court's earlier ruling putting that part of Watson's order on hold.
The Justice Department could seek Supreme Court review in that time.
Chris Geidner is the legal editor for BuzzFeed News and is based in Washington, DC. In 2014, Geidner won the National Lesbian & Gay Journalists Association award for journalist of the year.
Contact Chris Geidner at email@example.com.
Got a confidential tip? Submit it here.