HONOLULU (CN) – A federal judge in Hawaii on Thursday added grandparents and others to the list of family members excluded from President Donald Trump’s executive-ordered travel restrictions, saying the government’s new guidelines “constitutes cherry-picking and resulted in a unduly restrictive reading of ‘close familial relationship.’”
U.S. District Judge Derrick Watson said the government may not deny entry to family members of people in the United States – including grandparents, grandchildren, brothers- and sisters-in-law, aunts, uncles, nieces, nephews and cousins – or turn away refugees who have a bona fide relationship with the United States.
In the case of refugees, Watson said the government may not deny entry to refugees covered by a formal assurance between the government and a U.S. refugee-resettlement agency.
Watson declined, however, to enlarge his original order to include refugees involved with U.S. legal organizations, U.S.-affiliated Iraqis, or people in the Central America Minors Program, deferring to Supreme Court guidance. He also rejected Hawaii’s request to bar the government from applying a so-called presumption against applicants.
Watson initially declined to hear Hawaii’s emergency request, saying the parties were in disagreement over a June 26 Supreme Court discussion of “close family” and that they should make their arguments there. But a subsequent ruling by the Ninth Circuit kicked the matter back to Watson to interpret what the nation’s highest court meant by “close familial relationship” and “bona fide relationship” with the United States.
The Supreme Court’s decision in June emboldened the Trump administration. While the high court stayed portions of Watson’s injunction, notably the section extending protection to foreign nationals travelling from six Muslim-majority countries, it let stand other portions of the injunction including those pertaining to visiting family.
In its discussion, the court sought only to exemplify “close family,” calling plaintiff Ismail Elshikh’s mother-in-law, a Syrian subject to a 90-day waiting period under Trump’s revised orders, an instance of close family. But the Trump administration took this as a cue to omit any family members the high court had not explicitly mentioned, later falling back on a standard that actually excludes mothers-in-law.
Watson called the government’s use of the family-based visa provisions of the Immigration and Nationalization Act as a standard for determining close family “cherry-picking,” citing other equally relevant federal immigration statutes that define a close family in a much broader manner.
“In sum, the government’s definition of ‘close familial relationship’ is not only not compelled by the Supreme Court’s June 26 decision, but contradicts it,” Watson wrote, calling the government’s definition “the antithesis of common sense.”
Watson continued in the same vein to dismantle the government’s argument against admitting refugees. In its brief to the court, Justice Department attorneys claimed that formal assurance from a resettlement agency does not establish a bona fide relationship with an entity in the United States because the assurance is an agreement between the State Department and a resettlement agency, not between a resettlement agency and the refugee, and therefore not bona fide.
“Nothing in the Supreme Court’s decision requires a refugee to enter into a contract with a United States entity in order to demonstrate the type of formal relationship necessary to avoid the effects of Executive Order 2,” he wrote. “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.
“Bona fide does not get any more bona fide than that.”
U.S. Attorney General Jeff Sessions said he'd fight Watson's latest order at the Supreme Court.
"Once again, we are faced with a situation in which a single federal district court has undertaken by a nationwide injunction to micromanage decisions of the co-equal executive branch related to our national security," Sessions said in a statement. "By this decision, the district court has improperly substituted its policy preferences for the national-security judgments of the executive branch in a time of grave threats, defying both the lawful prerogatives of the executive branch and the directive of the Supreme Court."
Shayan Modarres, legal counsel for the National Iranian American Council, applauded Watson’s clarifications.
“We applaud U.S. District Judge Derrick Watson for standing up for the rule of law and decency by finding that the exclusion of grandparents and other close family members from the Trump administration’s definition of close familial relationship ‘represents the antithesis of common sense,’” Modarres said in a statement.
“We have always maintained that the Muslim ban as a whole – consisting of the executive order and the backdoor administrative ban that is already being carried out – is the antithesis of common sense as it does not reflect or address real security concerns, fails to keep Americans safer, and infringes on the rights of many American citizens to see family and friends,” Modarres added. “Sadly, today's decision does not provide relief to many refugees, including the refugees currently before the U.S. Supreme Court. Even a partial Muslim ban is still a Muslim ban. Until the Muslim ban is fully defeated we cannot rest.”
A full test of Trump’s executive order is pending before the U.S. Supreme Court.
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