Just hours after the Ninth Circuit Court of Appeals denied its most recent challenge to the Trump travel ban, the state of Hawaii filed yet another motion challenging it in federal court:
In its June 26 decision, the Supreme Court let stand the temporary travel and refugee ban contained in that executive order but added that the ban would not apply to refugees and visa applicants with a “bona fide relationship” to an American resident.
The Trump administration quickly defined “bona fide relationship” as parent, child, sibling, spouse or fiance. The state of Hawaii wants a broader definition that would include grandparents, aunts, uncles, cousins, and possibly more distant relations.
“Late Friday, the Ninth Circuit said no to Hawaii’s request for an emergency appeal of Judge Watson’s denial, saying it lacked jurisdiction to hear the appeal,” as Breitbart News reported on Saturday:
But the liberal judges on the panel could not resist giving Hawaii a road map to get what they want.
The Ninth Circuit ruled that Hawaii should have asked Judge Watson to modify his previous injunction halting the Executive Order on March 15 (partially overturned by the Supreme Court on June 26) instead of asking for him to “clarify” the Supreme Court’s decision.
Later on Friday night, Hawaii Attorney General Doug Chin filed a 31-page motion in Honolulu with U.S. District Judge Derrick Watson that did just that. The former Principal Deputy Solicitor General under President Obama, Neal Kumar Katyal, now a partner at Hogan Lovells in Washington, D.C., is private co-counsel for both plaintiffs–the state of Hawaii and Ismail Eshikh–in the case.
Katyal has extensive experience arguing before the Supreme Court. In November 2015, National Law Journal reported “Neal Katyal’s 26th argument before the U.S. Supreme Court, given in an otherwise routine case Monday, marked a major milestone: He has appeared at the lectern more times than any other male minority lawyer except for Thurgood Marshall.”
“The Government has announced that it is implementing, and that it intends to continue implementing, Executive Order 13780 in a manner that conflicts with the portions of this Court’s preliminary injunction that were not stayed by the Supreme Court’s June 26, 2017 ruling,” the motion stated:
Plaintiffs therefore request that the Court issue an Order enforcing or modifying its preliminary injunction to reflect that:
(1) the injunction bars the Government from implementing the Executive Order against grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States;
(2) the injunction prohibits the Government from applying sections 6(a) and 6(b) to exclude refugees who: (i) have a formal assurance from a resettlement agency within the United States (ii) have a bona fide client relationship with a U.S. legal services organization; or (iii) are in the U.S. Refugee Admissions Program (“USRAP”) through the Iraqi Direct Access Program for “U.S.-affiliated Iraqis,” the Central American Minors Program, or the Lautenberg Program;
(3) the injunction bars defendants from suspending any part of the refugee admission process, including any part of the “Advanced Booking” process, for individuals with a bona fide
relationship with a U.S. person or entity; and
(4) the preliminary injunction prohibits the Government from applying a presumption that an applicant lacks “a bona fide relationship with a person or entity in the United States.”
In its June 26 decision, the Supreme Court ruled that with regards to the temporary 120 ban on refugees, “The Government’s application to stay the injunction with respect to §§6(a) and (b) is accordingly granted in part.”
Section 6(a) may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States.
Nor may §6(b); that is, such a person may not be excluded pursuant to §6(b), even if the 50,000-person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.
Hawaii’s assertion that the Government “intends to continue implementing Executive Order 13780 in a manner that conflicts with the portions of [Judge Watson’s March 29, 2017] preliminary injunction” that were not stayed by the Supreme Court requires Judge Watson to make a significant leap of interpretation, one that, on the face of it, appears to run counter to the specific language the Court used in its June 26 decision.
“The facts of these cases illustrate the sort of relationship that qualifies,” the Supreme Court said of both the temporary travel ban and the temporary refugee ban.
For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship.
As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2.
The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience.
Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion. (emphasis added)
While Judge Watson expressed considerable personal animosity towards President Trump in his March 15 temporary restraining order and his March 29 preliminary injunction, the state of Hawaii is asking him to interpret the Supreme Court’s June 26 decision in such a way that looks perilously close to largely rejecting it.
Should he rule in favor of the state of Hawaii, and should the Ninth Circuit Court of Appeals uphold that decision upon a likely appeal by the Trump administration, the matter would again go to the Supreme Court for consideration.
Of the 49,803 refugees who have been resettled in the United States during the first nine months and seven days of FY 2017, only three–all from Burma–have been resettled in Hawaii, according to the State Department interactive website.
In FY 2016, the last full year of the Obama administration, not a single refugee was resettled in Hawaii out of the total of 84,995 that were resettled in the entire country.
In the fifteen plus fiscal years since FY 2002, a total of 127 refugees have been resettled in Hawaii.