By Sudhin Thanawala and Gene Johnson
August 28, 2017
SEATTLE — Three federal appeals court judges on Monday challenged the Trump administration’s limited view of who is allowed into the country under the travel ban, with one questioning from “what universe” the government got the idea that the mother-in-law of a U.S. resident could enter while cousins, aunts and uncles, and grandparents are barred.
In June the U.S. Supreme Court said President Donald Trump’s 90-day ban on visitors from Iran, Libya, Somalia, Sudan, Syria and Yemen can be enforced pending arguments scheduled for October — but only if those visitors lack a “bona fide relationship with a person or entity in the United States,” such as a close family relationship or a job offer from a U.S. company.
The government interpreted such family relations as including immediate family members and in-laws, but it excluded grandparents, cousins, aunts and uncles. A judge in Hawaii overruled that interpretation, expanding the definition of who can enter to other categories of relatives. The Hawaii judge also overruled the government’s assertion that refugees from those countries should be banned even if a refugee-resettlement agency in the U.S. had already agreed to take them in.
The administration appealed that order to the 9th Circuit Court of Appeals, and a three-judge panel heard arguments in Seattle.
Deputy assistant attorney general Hashim Mooppan ran into tough questions as soon as he began arguing the government’s case, with Judge Ronald Gould asking him from “what universe” the administration took its position that grandparents don’t constitute a close family relationship. Judge Richard Paez similarly questioned why an in-law would be allowed in, but not a grandparent.
“Could you explain to me what’s significantly different between a grandparent and a mother-in-law, father-in-law?” Paez asked. “What is so different about those two categories? One is in and one is out.”
Mooppan conceded that people can have a profound connection to their grandparents and other extended relatives, but from a legal perspective, the administration had to draw the line somewhere to have a workable ban based largely on definitions used in other aspects of immigration law, he said. The difference, he insisted, are that parents-in-law are only one step removed from the family unit, while a grandparent or grandchild is more than one step removed.
“It can’t just mean all family except the most distant,” he said.
Paez didn’t buy it. The Supreme Court didn’t say people had to have an “immediate family relationship,” he later noted, but a “close familial relationship.” If the justices meant the former, they would have said so, he said.
The judges also questioned the government’s assertion that having a sponsoring resettlement agency doesn’t qualify a refugee as having a “bona fide” relationship with an organization in the U.S. The resettlement agency’s relationship is not actually with the refugee, but with the U.S. government, Mooppan insisted.
Paez asked where in the Supreme Court ruling the justices required that the relationship be direct. The Supreme Court didn’t use that word, Mooppan agreed.
“So the answer to the judge’s question is, ‘nowhere,’” Judge Michael Hawkins interjected.
Colleen Roh Sinzdak, an attorney representing the state of Hawaii, which sued over the ban, said the resettlement agencies meet a key test the Supreme Court articulated to allow immigrants in the country because they would experience hardship if the refugees they were helping were excluded.
Hawaii Attorney General Douglas Chin attended the hearing.
“This executive order has no factual basis in stopping terrorism,” he said afterward. “It’s purely designed to discriminate against people based on their nation of origin. So for them to dicker and nickel and dime us over what is a close family relationship, ultimately that’s affecting people’s constitutional rights.”
Thanawala reported from San Francisco.
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