New York Times
By Adam Liptak
August 28, 2017
WASHINGTON — In the latest arguments over President Trump’s travel ban, a three-judge panel of a federal appeals court in Seattle indicated on Monday that it would continue allowing grandparents and other relatives of United States residents to travel here from six predominantly Muslim countries.
But the judges were less forthcoming about their views on exceptions to a second part of the ban, suspending the nation’s refugee program.
In July in a provisional ruling, one that will last only until the appeals court rules, the Supreme Court allowed exceptions to the ban for many relatives but not for most refugees. The Supreme Court will hear arguments in the case in October. The appeals court is set to decide what will happen while the justices consider the case.
By the end of Monday’s 40-minute argument, it seemed clear that the appeals court, the United States Court of Appeals for the Ninth Circuit, would rule that the administration had overreached, at least as far as relatives were concerned.
“How can the government take the position that a grandmother or grandfather or aunt or uncles of a child in the United States does not have a close familial relationship?” Judge Ronald M. Gould asked. “Like what universe does that come from?”
How the appeals court would deal with refugees was less clear.
Hashim M. Mooppan, a Justice Department lawyer, argued that an agreement by a resettlement agency to care for a refugee was insufficient to allow entry. Colleen Roh Sinzdak, a lawyer representing Hawaii, which is challenging the ban, said such an agreement satisfied the criteria set out by the Supreme Court.
The travel ban, issued in January and revised in March, caused chaos at airports nationwide and gave rise to a global outcry. It has also prompted a cascade of litigation.
In June, the Supreme Court agreed to decide whether the revised version of the ban was lawful, and it has scheduled arguments for Oct. 10.
Two federal appeals courts had blocked central parts of the ban. One said it violated the Constitution because it discriminated based on religion, the other said that it exceeded the president’s statutory authority to control immigration.
The Supreme Court’s ruling in June temporarily reinstated the ban — but only for people without “a credible claim of a bona fide relationship with a person or entity in the United States.” The court did not specify who qualified as a close relative, though it did say spouses and mothers-in-law “clearly” counted.
The Trump administration interpreted the Supreme Court’s decision to exclude most refugees. It also said that only some relatives of American residents — parents, children, spouses, siblings, parents-in-law, sons- and daughters-in-law and people engaged to be married — could enter. The administration barred other relatives, including grandparents, grandchildren, aunts, uncles, nephews, nieces and cousins.
In July, Judge Derrick K. Watson of Federal District Court in Honolulu disagreed with the administration’s interpretation of the Supreme Court’s ruling as to both refugees and relatives.
The administration had said it was entitled to exclude refugees whom resettlement agencies had planned to help move to the United States. Judge Watson disagreed, writing that the Supreme Court had meant to allow such people to enter the country.
“An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones,” he wrote. “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.”
Judge Watson also said the administration’s approach to relatives was too narrow.
“Common sense, for instance, dictates that close family members be defined to include grandparents,” Judge Watson wrote. “Indeed, grandparents are the epitome of close family members. The government’s definition excludes them. That simply cannot be.”
Bypassing the Ninth Circuit, the administration asked the Supreme Court to intervene. On July 19, the justices declined, sending the case back to the appeals court.
In its brief, unsigned order, the Supreme Court provisionally let stand Judge Watson’s ruling as to relatives. But it blocked his decision “with respect to refugees covered by a formal assurance” until the “resolution of the government’s appeal to the Court of Appeals for the Ninth Circuit.”
Monday’s arguments, which were streamed on the court’s website, concerned that appeal.
The case was heard by Judges Gould, Michael Daly Hawkins and Richard A. Paez. All three were appointed by President Bill Clinton. In June, the same panel ruled against Mr. Trump in one of the cases the Supreme Court will hear in October.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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