And grandmas, uncles, aunts, and cousins as well. After the Ninth Circuit practically begged him to do so, federal judge Derrick Watson expanded the definition of familiar relationships in Donald Trump’s so-called “travel ban.” Whether that will pass muster with the Supreme Court, which had already set up its own parameters on the question, remains to be seen:
A federal judge in Hawaii has put new limits on the Trump administration’s travel ban on people from six mostly Muslim countries, allowing travel for grandparents, grandchildren, and other family members of people in the United States.
U.S. District Court Judge Derrick Watson’s order Thursday prevents the administration from enforcing the travel ban against grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins.
In his ruling, Watson took aim at how the administration defines a close familial relationship, writing, “[T]he 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.”
While some celebrated the Ninth Circuit’s decision last week to deny Hawaii’s emergency motion to block the SCOTUS-approved ban from being implemented, they missed a key part of the order. The court correctly ruled that they no longer had the jurisdiction to “clarify” the Supreme Court’s order, as had Watson in district court earlier. However, the final paragraph of their order last week practically invited them to file another complaint that would allow Watson to interpret the Supreme Court decision as they wanted:
Finally, we note that although the district court may not have authority to clarify an order of the Supreme Court, it does possess the ability to interpret and enforce the Supreme Court’s order, as well as the authority to enjoin against, for example, a party’s violation of the Supreme Court’s order placing effective limitations on the scope of the district court’s preliminary injunction. Cf. United States v. El-O-Pathic Pharmacy, 192 F.2d 62, 79–80 (9th Cir. 1951). But Plaintiffs’ motion before the district court was clear: it sought clarification of the Supreme Court’s June 26 order, not injunctive relief. Because the district court was not asked to grant injunctive relief or to modify the injunction, we do not fault it for not doing so.
The only thing lacking here is the wink-wink, nudge-nudge that normally accompanies such subtle approaches. It didn’t take long for the plaintiffs to refile their challenge on the basis of defining familial relationships, allowing Watson — who authored one of the injunctions against the EO earlier this year — to take the hint from the Ninth Circuit.
Whether this holds up with the Supreme Court is another matter — assuming that the Trump administration bothers to challenge it. Their per curiam decision limited the ban to people who could not credibly claim a “bona fide relationship with a person or entity in the United States,” but didn’t define the closeness necessary for the exception. The specific case in which they ruled dealt with a Syrian mother-in-law of an American citizen who had been denied entry, and ruled that the relationship qualified as both credible and close. The order also extended beyond familial relationships:
The facts of these cases illustrate the sort of relationship that qualifies. 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.
The addition of familial relation categories by Watson will clearly pass muster with the Ninth Circuit. It’s clearly why they wrote the last paragraph of their order. Will the Trump administration challenge it? Probably, but the tenor of the Supreme Court decision hints that they may end up losing the argument there, too. If enrollees at the University of Hawaii have a close enough relationship to an American entity for exceptions to the ban, it’s going to be very tough to convince them that grandparents, uncles, aunts, cousins, nieces, and nephews don’t.