U.S. District Judge Derrick Watson ruled late Thursday in favor of the state of Hawaii’s motion to overrule the Trump administration’s definition of “bona fide relationship.” This allows grandparents and other distant relatives of American residents to arrive in the country as refugees from any country and travelers from six Middle Eastern countries temporarily banned from arriving in the United States under Executive Order 13780.
Watson, whose March 29 preliminary injuction in Hawaii v. Trump halting Section 2 (c) (the temporary travel ban) and Section 6 (the temporary refugee ban) of Executive Order 13780, signed by President Trump on March 6, was partially overturned by the Supreme Court in its unanimous June 26 decision is in effect daring the Supreme Court to overrule him again.
“What is clear from the Supreme Court’s decision is that this Court’s analysis is to be guided by consideration of whether foreign nationals have a requisite ‘connection’ or ‘tie’ to this country,” Watson ruled, siding with the brief filed by the state of Hawaii, in which they argued, “The Supreme Court held that the injunction “clearly” protects aliens “similarly situated” to a U.S. person’s mother-in-law . . . , a relative that is—like a grandparent, a niece, and so on—two “degree[s] of kinship” removed from a U.S. person .”
“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,” Watson added.
What the Supreme Court actually said in its June 26 decision in reference to “mother-in-law” is this:
“The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relationship is required,” the Supreme Court wrote in its unanimous June 26 decision:
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 Dr. Elshikh referenced in the Supreme Court is the second plaintiff in the case, Dr Ismail Elshikh, an Egyptian born legal resident of the United States who heads up the largest mosque in Hawaii. He resides in the United States with his wife, whose mother–Dr. Elshikh’s mother-in-law– is therefore “one degree of kinship” removed from a resident of the United States.
“The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity,” the Court added:
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
Watson also sided with the state of Hawaii, which has resettled only three refugees so far in FY 2017 and none in FY 2016, and granted its motion to define a “bona fide relationship” between an individual or an entity as including a promise made by a federally funded refugee resettlement agency to relocate the foreign national in the United States as a refugee.
“An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades,” Watson wrote.
The Court, in its June 26 decision, wrote that “The Hawaii injunction extends beyond §2(c) to bar enforcement of the §6(a) suspension of refugee admissions and the §6(b) refugee cap.”
An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded.
As to these individuals and entities, we do not disturb the injunction.
But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.
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
Watson’s decision may will further polarize the country between the blue states and the red states.
On Monday, for instance 14 blue states, the District of Columbia, and the state of Iowa, which voted for Trump, filed a filed a friend-of-the-court brief in support of Hawaii’s motion.
It may also once more generate calls for his impeachment.
“Watson’s reasoning is so convoluted and were it actually true that a refugee resettlement agency had a ‘contract’ inferring that there was some kind of commitment or expectations of how many refugees they would be paid to resettle, then a resettlement agency would have sued long ago if they didn’t get the number of refugees they proposed taking,” an attorney familiar with the refugee resettlement program tells Breitbart News.
“We know this is really about two things – obstructing Trump and keeping the money flowing,” the attorney adds.
In his partially concurring, partially dissenting opinion released as part of the June 26 Supreme Court Decision, Justice Clarence Thomas predicted the bureaucratic mess and left wing lawfare that would be the result.
Though Thomas did not explicitly state it, the Supreme Court’s unanimous decision failed to acknowledge that there is no statutory basis for the “bona fide relationship” exception in the refugee admissions program it added.
“But the Court takes the additional step of keeping the injunctions in place with regard to an unidentified, unnamed group of foreign nationals abroad,” Thomas wrote.
“Moreover, I fear that the Court’s remedy will prove unworkable,” Thomas concluded in his dissent:
Today’s compromise will burden executive officials with the task of deciding—on peril of contempt— whether individuals from the six affected nations who wish to enter the United States have a sufficient connection to a person or entity in this country.
The compromise also will invite a flood of litigation until this case is finally resolved on the merits, as parties and courts struggle to determine what exactly constitutes a “bona fide relationship,” who precisely has a “credible claim” to that relationship, and whether the claimed relationship was formed “simply to avoid §2(c)” of Executive Order No. 13780.
And litigation of the factual and legal issues that are likely to arise will presumably be directed to the two District Courts whose initial orders in these cases this Court has now—unanimously—found sufficiently questionable to be stayed as to the vast majority of the people potentially affected.
As it relates to the refugee portion of his decision, Judge Watson’s decision influences only the last eleven weeks of FY 2017, which was the limit of Section 6 in Executive Order 13780.
Congress has only funded the resettlement of about 62,500 refugees in FY 2017.
On Thursday, the first day in which the Trump administration’s definition of “bona fide relationship went into effect, 81 refugees were allowed into the country.
By law, the President establishes the ceiling for refugees, and in consultation with Congress establishes the budget to fund the resettlement of those refugees.
In September 2016, before the beginning of FY 2017, President Obama set a refugee ceiling for FY 2017 at 110,000, but Congress never provided that level of funding for the program.
President Trump’s ceiling of 50,000 was specified in the Executive Order 13780.
As of 11 p.m. eastern on July 13, 50,186 refugees have been resettled in the United States during FY 2017, 186 above Trump’s limit, according to the State Department’s interactive website.
It marks the first time in the history of the program that a ceiling established by a U.S. President has been exceeded.
FY 2017 is unusual, however, since the original ceiling of 110,000 was established by a lame duck president who served only three and a half months of the fiscal year for which he set the ceiling, Congress only funded about 62,500 refugees ultimately for the fiscal year, and President Trump established the ceiling in an executive order issued five months into the fiscal year.
The real test of Trump administration’s policy regarding refugees will come in September, when he issues a ceiling recommendation for FY 2018.
Meanwhile, Judge Watson’s decision, if it remains in effect, will simply be about how much money federal taxpayers will pay resettlement agencies for the remaining eleven weeks of FY 2017.
At the 81 refugees per day rate of July 13 which, presumably reflects the Trump administration’s narrow definition of “bona fide relationship,” another 4,400 refugees will be resettled in FY 2017, bringing the total in FY 2017 to 54,500.
In contrast, if the Trump administration follows the broader definition forced upon it by Judge Watson’s decision, another 12,000 to 12,500 refugees will be resettled in FY 2017, bringing the total in FY 2017 to slightly over 62,000.
The next step as it relates to the FY 2017 refugee admission numbers and the travel ban is up to the Trump administration.
They did not comment after Judge Watson’s decision Thursday night, but their only immediate option is to appeal the decision to the Ninth Circuit. They cannot appeal directly to the Supreme Court.
The Supreme Court is currently scheduled to hear the federal government’s appeal of Hawaii v. Trump after its annual session begins in October.