Scope of Travel Ban Challenged

On June 29, 2017, the Attorney General of Hawaii, Douglas S. Chin, asked for clarification regarding scope of President Trump's Travel Ban arguing the administration's limited definition of close familial relationship may be in violation of the Supreme Court's injunction.  US District Court Judge Derrick K. Watson denied the request because Plaintiffs seek clarification of an injunction authored by the Supreme Court and therefore clarification should be sought there.  Yesterday, Friday, the U.S. 9th Circuit Court of Appeals also refused to expand those exempt from President Trump’s travel ban, suggesting the order was procedural defective because the Supreme Court is the proper court to file a request for clarification.

By unanimous decision, the Supreme Court of the United States ruled the injunction(s) against President Trump’s second executive order known as the “Travel Ban” shall remain in place with the exception to those person’s how do not have a close familial relationship to a person in the United states or a foreign national who persons who do not have a formally documented relationship to an entity such as a school, American company, or speaker/lecturer invited to address and American audience.  The Supreme Court did not overturn the injunction prohibiting the implementation of the Travel Ban about those individuals similarly situated to the Respondents, John Doe #1, and Dr. Elshikh, and Hawaii.

Following the Supreme Court’s ruling, the Trump administrations defined “close familial relationships,” to include parents (including parent-in-law), spouses, fiancés, children, adult son or daughter, son-in-law, daughter-in-law, sibling (whether whole or half), and step relationships.  The administration does not include grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, and any other “extended” family members in the definition.  The administration based its definition on the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 section 201.  That section defines “immediate relatives” of U.S. citizens as their parents, spouses, and unmarried children under the age of 21.

The Administration Narrows SCOTUS’s Definition of Close Familial Relationship.

The administrations definition is too narrow because it is neither consistent with the Supreme Court’s ruling nor the INA.  The INA defines “Immediate relatives” of U.S. citizens.  Respondent John Doe #1 is a lawful permanent resident of the United States.  Doe’s status as a permanent resident, places him outside of the administration definition of “immediate” family but within the definition contemplated by the Supreme Court.

The administration admits the INA does not define “close familial relationship” but merely family-based preferences in allotting numerically-limited visas.  The INA gives preference to the parents, spouses, and unmarried children under the age of 21 of United States citizens.  Four other categories of preference exist outside of the INS’s definition of “close familial relationships,” that apply to both United States citizens and lawful permanent residents (LPRs):

(1) Unmarried sons and daughters of United States citizens;

(2) Spouses and unmarried sons and unmarried daughters of permanent resident;

(3) Married children of United States citizens;

(4) Brothers and sisters of United States citizens

Not included in INS’s definition of “Immediate relatives” or family-based preferences are in-laws of U.S. citizens or parents of a permanent resident.  The Supreme Court prohibited the administration from imposing the travel ban against people like Respondent, Dr. Ismail Elshikh who is an American citizen and whose Syrian mother-in law is seeking entry to this country.

The administration recognizes the inconsistency but argues it does not support departing from the INA Dr. Elshikh’s wife is a U.S. citizen within the definition of “Immediate relatives” However, Respondent Dr. Ismail Elshikh’s status as an in-law cannot be so easily dismissed and the administration’s failure to include an in-law of a U.S. citizen is probably too narrow a definition.

Hawaii’s Desired Definition of Close Familial Relationship is Probably Too Broad.

Hawaii’s primary argument is excluded grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law, sisters-in-law, and fiancé are “close familial relationships” as contemplated by the Supreme Court because these relationships are comparable to Dr. Elshikh and his mother-in-law as they too are within two degrees of consanguinity.  Hawaii’s argument to extend the injunction to include grandparents, grandchildren, aunts, uncles … etc. confuses degrees of separation with consanguinity/affinity.  The degree of affinity (non-blood) relative is determined by the consanguinity as if the person was a blood relative.  Dr. Elshikh and his mother-in-law have one degree of affinity/consequently, not two.  Additionally, under Hawaii definition, cousins are three degrees of consanguinity making Hawaii’s comparison flawed.